Year in Review

From ice hockey venues to coaching inequities, Title IX concerns continue to be in the news and in the courts. Here’s a review of the most recent interpretations of this law.

By Laura Smith

Laura Smith is an Assistant Editor at Athletic Management.

Athletic Management, 16.3, April/May 2004, http://www.momentummedia.com/articles/am/am1603/review.htm

One year after the U.S. Department of Education’s Commission on Opportunity in Athletics issued a report to clear up disagreements over Title IX, questions remain. Lots of them.

In Pennsylvania, university administrators recently received a hard lesson in proportionality. In Minnesota, a judge has ruled on whether facilities can be different but equal. Pennsylvania and Kentucky high schools are working on scheduling equity. A small college in Maine was sued for coaching inequities. And new studies out of California and Massachusetts reveal where high schools and colleges are still lagging most in Title IX compliance.

In this article, we’ll relay some of the most recent and pertinent Title IX happenings, and give you tips—from both lawyers and administrators—on how to comply with this much-discussed legislation.

QUESTIONING CUTS
In a time of reduced budgets, can a school eliminate athletic opportunities for women to accommodate a decrease in funding? This fall, a federal court in Philadelphia signaled that the answer is no, if doing so will leave the institution unable to comply with at least one of the three compliance prongs of Title IX—proportionality, a demonstrated history of expanding opportunities, or accommodation of interest.

In a November 2003 preliminary injunction, a federal court ordered West Chester University to re-instate its women’s gymnastics team, which had been dropped the previous spring along with men’s lacrosse in order to trim $98,000 from the athletic budget. "Following a couple of years of level funding, we were asked to reduce our budget by five percent," says Ed Matejkovic, Athletic Director at West Chester. "We didn’t want to make cuts to all our sports across the board, so we chose to eliminate two sports that didn’t fit into our program—no other school in our conference sponsors them and they are expensive."

To replace the opportunities lost by cutting the gymnastics team, West Chester planned to add a women’s golf team, which would yield an overall increase in the percentage of female athletes at the school. However, that increase was not enough to make opportunities proportional to the student population.

"In essence, the judge said that any time a school is out of statistical proportionality and cuts a women’s team, that’s a Title IX violation," says Leslie Brueckner, Staff Attorney with Trial Lawyers for Public Justice, who represented the gymnasts in the case. "And that is true even if they also cut men’s teams, and their proportionality improves slightly."

West Chester also failed in its attempt to illustrate that it complied with Title IX’s second prong: showing a history of expanding opportunities for women. "We’ve made concerted effort to address gender equity issues for the past nine years," Matejkovic says. "We’ve improved our women’s fields and facilities and expanded their services and scholarships, and we put rules into place to ensure that our women’s teams are treated equitably when they travel."

The court, however, ruled that these improvements did not constitute compliance under the second prong, which is based on opportunities as opposed to equitable treatment. West Chester last added a women’s team—soccer—10 years ago, and prior to that, the school had not added a women’s sport since 1979. Improving the existing programs, U.S. District Judge R. Barclay Surrick wrote in his decision, "while laudable, does not demonstrate program expansion."

"The only way a school could use the second prong to justify eliminating a women’s team would be if they had added a number of women’s teams over a substantial period of time, and then cut one," says Brueckner. "However, any time you’re cutting a women’s team, it’s very hard to show the courts that you’re expanding your women’s program."

West Chester also attempted to illustrate compliance based on the third prong by proving that the institution is fully accommodating their female students’ interests and abilities. "We sponsor 13 sports for women, which probably puts us among the top two percent in the country in Division II," Matejkovic says. "We feel we’ve been very responsive to the interests of our female students." The school also pointed to results of a 1999 student interest survey in support of its argument.

However, the judge dismissed this rationale as well, ruling that the survey’s response rate was too low to make it viable and pointing out that the gymnasts involved in the suit were clearly interested and able to compete. The court relied on the gymnastics team’s record and the testimony of coaches at rival schools as evidence that the team possessed the ability to participate competitively. Given that they had a group of dissatisfied female gymnasts with proven interest and ability, the court said the school could not prove Title IX compliance under prong three.

"If a school genuinely can illustrate that there are not any women on campus with the interest and ability to play competitively, it can have more men than women," Brueckner says. "But if you aren’t in proportion and you cut a viable women’s team, and those student-athletes have the interest and ability to play their sport, that violates Title IX."

Based on the preliminary injunction, West Chester’s gymnastics team has been reinstated, along with its coaching staff and budget, and the new women’s golf team remains in place as well. The school is still awaiting a final decision in the case.

EQUITABLE, NOT IDENTICAL
Along with seeking a better understanding of proportionality, schools are looking for answers to questions on equal treatment of men’s and women’s sports. One recent court case examined venues for championship events.

In November 2003, the Minnesota State High School League was sued under Title IX for placing the girls’ state ice hockey tournament in the University of Minnesota’s 3,200-seat Ridder Arena, while the boys’ tournament is played in the Minnesota Wild’s Xcel Energy Center, which has seating for 18,000. In addition to the extra seating, the plaintiffs (girls’ ice hockey players and their parents) claimed that Ridder’s inferior locker rooms, concessions, and publicity opportunities further disadvantaged the girls. They asked District Court Judge Paul Magnuson for a preliminary injunction that would have moved the February 2004 girls’ tournament to the Xcel Energy Center, and for a permanent ruling to keep it there.

Representing the MSHSL, attorney Mark Whitmore argued that the girls’ venue, while not identical to the boys’, provides an equitable place for the girls to play. "Ridder Arena was built in 2002 solely for girls’ and women’s ice hockey," he says. "It’s the first facility in the country specifically designed for that purpose, and the University of Minnesota traditionally has the top-ranked team in the country."

In addition, Whitmore argued that the number of seats in Ridder Arena is appropriate for the girls’ tournament, which has a smaller following than the boys’ tournament. "The attendance numbers are such that Ridder creates a perfect tournament atmosphere," he says. "What the League didn’t want was a situation where the girls played in front of 1,800 people in an 18,000-seat arena."

Magnuson ruled against the preliminary injunction. He invited the plaintiffs to present more evidence to prove that Ridder Arena’s size is stunting the tournament’s growth, but in terms of their claims about the arena’s inferiority, his answer was definitive: Equal treatment of boys’ and girls’ sports teams does not mean identical treatment, and therefore, the fact that the boys’ tournament is held at the Xcel Center doesn’t obligate the MSHSL to place the girls’ tournament there.

But what about a situation where a boys’ tournament is played on a college campus while the corresponding girls’ tournament is played at a high school facility? In New Jersey, a group of schools faced that question this winter. Several girls’ basketball coaches accused athletic administrators of violating Title IX by siting the girls’ side of the Essex County Basketball Tournament at East Orange Campus, a high school facility, while the boys played at Essex County College.

Before 2003, both tournaments were played at the college, but the Essex County Athletic Directors Association (ECADA) decided to relocate the girls’ tournament in 2003 because coaches indicated they wanted a location separate from the boys’ tournament, according to ECADA president Ted D’Alessio. Seating capacity at Essex had also become an issue when girls’ and boys’ games were played back to back.

This year, however, the girls’ coaches made it clear that they were not happy with the arrangement, calling it gender discrimination. The coaches voiced their complaint in January, just three weeks before the tournament was scheduled to begin, and local newspapers picked up the story, reporting that the tournament may violate Title IX.

The ECADA held an emergency meeting. "We discussed whether the venues were comparable," says D’Alessio. "East Orange Campus was formerly a college facility—it was the home of now-defunct Upsala College—so initially we felt like the venues were equitable. But after talking with girls’ coaches and players, I realized that what they were missing was the college atmosphere. The girls were being denied the feeling that playing in the Essex County College gym provides for the boys. East Orange didn’t have that special quality."

Administrators and coaches reached a compromise. This year, all games in the girls’ tournament except the final game were played at East Orange. The title game was moved back to Essex County College. Before next year’s tournament, the ECADA has promised to meet with the girls’ coaches and find a permanent solution. "We think we can avoid having this turn into a Title IX case by communicating with the coaches involved, putting our heads together, and agreeing on a venue," D’Alessio says. The key will be working to determine when ‘different’ is equitable and when it’s not, he adds.

The distinction between equal and identical is a critical one. "Title IX requires that a school’s overall treatment of the girls’ and boys’ athletic programs be equal, not that it be exactly the same," explains Jocelyn Samuels, Vice President for Education and Employment at the National Women’s Law Center. "Dollar for dollar, an organization or school does not have to spend the same amount on the girls’ programs as the boys’ programs or provide exactly the same experiences, as long as the result is substantially the same for both genders."

It’s also important to remember that the law applies to the equality of the overall athletics program, and that individual teams do not have to be treated identically. "Title IX is not about comparing softball to baseball or boys’ basketball to girls’ basketball," says Larry Boucher, Assistant Commissioner of the Kentucky High School Athletic Association, who monitors Title IX compliance in his state. "It’s about comparing the entire athletic environment. If every time you do something for the girls, you drop a pebble in one bucket, and every time you do something for the boys, you drop a pebble in another bucket, and at the end of the day, the buckets are comparably full, it doesn’t matter which of the sports got what."

The cost of equipping players provides one example. "Let’s say you spend $500 per player to outfit your football team, and you get them the finest equipment you can find," Boucher says. "Now let’s say you buy your volleyball players the finest uniform on the market and that only costs $150. Even though the dollar figures aren’t identical, both genders received the best possible uniforms, so under Title IX, that is equitable."

PRIME TIME PLAY
One sometimes-overlooked issue is the scheduling of games. To comply with Title IX, schools are expected to divide prime game times—usually defined as Friday evenings and Saturday afternoons and evenings—between male and female teams.

Juniata (Pa.) High School found itself the subject of a suit over the scheduling of boys’ and girls’ basketball games. The Office for Civil Rights investigated and found that the school’s system of scheduling girls’ games for Monday and Thursday nights and boys’ games for Tuesday and Friday nights violated Title IX. "In the end, they told us, ‘Come up with an equitable way of dividing the nights, or risk losing your federal funding,’" says Ed Apple, Athletic Director at Juniata.

"I look at scheduling totally differently now," he says. "I used to schedule each team in isolation. Now I look at our program as a whole. Before I schedule anything, I sit back and ask, ‘If I do this one thing, what am I going to do to balance it out?’"

In Kentucky, athletic directors who are not dividing prime times equally are hearing from their state association. The KHSAA found that 60 percent of its schools give more prime time slots to boys’ teams. Those schools received a letter from the KHSAA this fall advising them to rectify the situation by scheduling at least 40 percent of girls’ home basketball games in prime time by next season. "We have not put into place any specific penalties yet for those who don’t," Boucher says. "But we are working on this alongside the Kentucky Department of Education, and when schools have both organizations telling them to do this, it would be unwise not to comply."

At Bardstown (Ky.) High School, Athletic Director David Clark has found that by being flexible, it’s possible to schedule games equitably without cutting boys’ prime time play. "Our first tactic was to schedule more Saturday games for girls in place of Thursday games," Clark says. "We’re also playing more girl-boy doubleheaders, with a j.v. doubleheader in the middle school gym next door on the same night."

However, simply moving the girls’ games to Friday or Saturday before the boys’ game isn’t enough, according to Boucher. "If you’re going to schedule a doubleheader, you need to let the girls play the later game on the prime time night half the time," he says.

That can be more difficult, Clark believes, since a common objection to scheduling girls’ games as the feature is that they result in lower ticket sales. "When we play the boys’ game earlier, we see attendance drop for both the boys’ and the girls’ game," he says. "Other schools around us are seeing the same thing."

However, lower ticket sales are not justification for dividing prime time play unequally, Samuels says. "That argument is shortsighted," she says. "Girls’ teams may have a smaller following, but there are two likely reasons for that. The first is that they have not been around as long as boys’ teams have. The second is that girls haven’t had access to prime time play. Schools have made it more difficult for fans to attend girls’ games, and then they turn around and say, ‘People aren’t interested in watching the girls play.’ It’s a self-perpetuating cycle, and the way to end it is to schedule games equally and then give the girls’ fan base time to grow."

BOOSTER CLUB CONCERNS
Many schools are also struggling with Title IX compliance in regards to booster club monies. Athletic departments can run into problems when parents or other private donors give more aid to one gender than to the other.

"When booster clubs provide something for a team, a lot of people think, ‘It’s not the school district’s money, so we can do whatever we want with it,’" says Dave Eavenson, Athletic Director at Carlisle (Pa.) High School, who leads seminars in his state on Title IX. "But booster clubs are an arm of the school district, and this means that any benefits they provide to one gender must also be provided to the other gender."

Facilities are a common area where booster club spending puts schools out of balance. Eavenson witnessed that trend firsthand last year, when enthusiastic boosters funded huge upgrades to the baseball field, causing the adjacent softball field to pale in comparison. "The situation was a lawsuit waiting to happen," he says. "The only options were telling the baseball boosters they couldn’t do any more to the baseball field or having the school fix the softball field to match." As a result, the school is spending $125,000 to upgrade the softball field.

Transportation is another common trouble spot. "One of the biggest trends we see involves football boosters paying to have the team travel in coach buses while everybody else uses school buses," Eavenson says. "We’ve solved that by making a policy that booster clubs cannot upgrade transportation for any team—if we go more than 70 miles away from home one way, we’re going to take a coach bus, no matter what team it is. If it’s less than 70 miles, we use a school bus."

Finally, watch out for booster clubs providing seemingly little extras that can add up to one gender receiving special treatment. "It’s things like special bags for baseball players to carry equipment, or special raincoats for football players to wear on the sidelines," Eavenson says, "or if the boosters always provide a pregame meal for the boys’ basketball team, but girls’ teams don’t get the same treatment. If special perks are offered to one gender, they need to be offered to the other gender as well."

Many athletic directors believe the best way to keep booster funding from creating Title IX problems is to have one large booster club that raises funds for the athletic department as a whole and allows administrators to divvy up the money as needed. For schools with numerous sports-specific clubs in place, Eavenson suggests forming an overall association with one representative from each of the clubs. "Direct that group to focus on large projects that benefit the athletic department as a whole, then have the smaller groups focus on smaller goals," he says. "The sport-specific clubs can, for example, organize an end-of-the-season banquet, or raise a modest sum for an outstanding senior award.

But major fund-raisers should be done through the overall association with the money going into the general athletic budget."

Since changes to an existing booster club structure may not be well received, make sure you are very clear about the reason for your plans and the need for gender equity. "It can be a difficult time, because you may have parents who don’t understand why they can’t do everything they want to do for their child’s sport," says Juniata’s Apple, whose district’s gender equity complaint included aspects of booster funding. "Now I sit down with all of the boosters and tell them, ‘We’re grateful for your help, but we have to put some limits into place to comply with the law and here’s why.’

"I take a much more active role now," he continues. "Boosters are required to come to me with requests in writing before they do anything, and I say yes or no after I consider how their request would affect our gender equity overall."

It’s an approach that yields sound answers to many Title IX questions: Know what’s going on at your institution and make sure you consider how your decision will affect gender equity. While there may still be more questions than answers surrounding Title IX, consistently factoring the law into your decisions will go a long way.


SIDEBAR: COAST TO COAST
In the first few months of 2004, groups in both California and Massachusetts released results from statewide studies that measured Title IX compliance. Both investigations found cause for concern.

In California, the state’s Postsecondary Education Commission (CPEC) hired RMC Research Corporation to gauge Title IX compliance at the state’s public institutions. Researchers sent surveys to 286 high schools and all of California’s community colleges and state universities, and supplemented the survey results with data from Equity in Athletics Disclosure Act reports, the California Department of Education, and the CPEC. They also conducted a series of site visits to schools.

"We found that we have some real success stories in California—schools that have achieved equity," says Murray Haberman, Project Manager at CPEC, "and we have some institutions that haven’t. The inequities seem most pronounced in the areas of participation and coaching."

Community colleges fared the worst when researchers measured participation. Only eight percent were able to meet Title IX’s proportionality test (where the gender ratio of student-athletes comes within five percent of the gender ratio of the entire student body), and 84 percent were "considerably outside the range of acceptability," according to Haberman.

The participation picture at the state’s high schools was better, but still far from equal: 26 percent met the proportionality test. On average, high schools had two more varsity teams for boys than for girls.

Four-year public colleges and universities fared best in participation. EADA reports revealed that 57 percent of California’s public universities are able to show proportionality.

At all three levels, researchers found inequities in coaching between male and female teams. Community colleges reported that 63 percent of coaches of men’s teams are full-time, compared to 45 percent of women’s team coaches. Head coaches of men’s teams at universities receive significantly higher salaries than head coaches of women’s teams.

Spending patterns followed a similar trend. At California’s universities, researchers found that men’s teams receive more funding overall and per athlete for operating expenditures and recruiting.

This spring, CPEC will forward its report to the California Legislature along with a set of recommendations. The group will advise lawmakers to allocate funds for educating schools at all three levels about Title IX compliance, particularly in the areas of participation, coaching, and evaluating student interests. The study’s findings highlight the need for such education: Fewer than 25 percent of high schools reported that their athletic director or coaches had received any training on gender equity in the past three years. At the university level, even though EDAC data shows only 57 percent of schools meet proportionality, 89 percent believed they were in compliance with Title IX’s first prong.

"People are out of compliance, but they don’t realize it," Haberman says. "If technical assistance is provided to schools in an effective way, a lot of the problems will be alleviated. The legislature already has bills in the works based on preliminary discussions with us about these findings."

On the opposite coast, researchers from the Harvard School of Public Health and the National Women’s Law Center evaluated the Title IX compliance of Massachusetts high schools, releasing a report in February. Researchers measured participation rates in Boston and statewide, and found that across the state, 50 percent of girls and 58 percent of boys participate in school sports, while within Boston, 36 percent of girls and 55 percent of boys participate in school sports.

To determine whether female student-athletes are treated fairly when they do participate, researchers examined Title IX complaints filed over the past five years with the OCR and interviewed female student-athletes, parents, coaches, and administrators. The report cites inequities in facilities, equipment, scheduling, coaching, and officiating, among other things.

The Massachusetts study revealed an even larger participation gap between boys and non-white girls. Across the state, 37 percent of African American girls and 28 percent of Hispanic girls participate in school sports, compared to 54 percent of white girls. In Boston, 33 percent of African American girls and 32 percent of Hispanic girls participate in school sports, compared to 49 percent of white girls.

Dr. Jean Weicha, a researcher on the project with the Harvard School of Public Health, says more research is needed to determine why girls of color are not participating. "Sometimes the opportunities are there, but there are barriers to girls using them," she says. "Other times, there are no opportunities. It’s important to figure out which is happening so that you can address it."

The Massachusetts report recommends education for athletes and their parents on Title IX, technical assistance for schools, and additional study of the issue. "We took this data to Massachusetts legislators," Weicha says. "We’re hoping that they will commission further study to better document what’s going on."

Weicha would also like to see mandatory annual data gathering and reporting by high schools. "It only make sense to require reporting," she says. "We have a law against discrimination at the high school level, but no system to monitor whether the law is effective or not."

A bill currently under consideration in the United States Senate would do just that. Introduced in 2002 and currently under review by the Health, Education, Labor, and Pensions Committee, the law would require schools to report numbers of participants in each sport by gender, race, and ethnicity to the United States Department of Education each year.

"This would be a tremendous help in effectively enforcing Title IX at the high school level," says Jocelyn Samuels, Vice President for Education and Employment at the National Women’s Law Center. "I think it’s an important piece of legislation and one that we at the National Women’s Law Center would love to see passed."

The text of the Senate bill is available at thomas.loc.gov/cgi-bin/query/z?c108:S.282:

For the complete results of the Massachusetts study, go to www.hsph.harvard.edu/press/releases/sports/keepingscorereport.pdf



SIDEBAR: COACHING COMPLIANCE
While participation and spending account for the bulk of Title IX complaints, increased attention is being paid to coaching. That issue formed the cornerstone of a Title IX case brought last year against Colby College in U.S. District Court in Bangor, Maine.

Five female student-athletes filed the complaint, alleging that Colby violated Title IX by assigning two head coaches of women’s teams multiple sports to coach, while no head coaches of men’s teams coach more than one sport. The college employs the same person as head coach for both women’s field hockey and lacrosse, while another person serves as head coach of women’s soccer and ice hockey.

In an out-of-court settlement reached in February, Colby agreed to split one of the coach’s assignments by this fall and to either split the remaining coach’s assignment by fall 2005 or reallocate men’s coaching assignments to create parity.

"It’s not that uncommon to have a women’s head coach coaching more than one sport, and I believe the college didn’t think it was a big problem initially," says Ray Yasser of the University of Tulsa College of Law, who represented the student-athletes along with Samuel Schiller of the Schiller Law Firm, in Cookeville, Tenn. "But it is a big deal—seasons might overlap and it means you don’t really have the year-long attention of the coach. Since no men’s teams were in that situation, it constituted a clear inequity."

Schools can fall out of Title IX compliance with regard to coaching in three ways, Yasser says: by paying inequitable salaries to coaches of women’s teams, by having fewer coaches for women’s teams, or by hiring coaches with less skill and experience for women’s teams. "Especially at the high school level, we’ve seen a lot of cases where schools use what I call the ‘Hey you’ approach to hiring coaches for female teams," he says. "They’ll do a statewide search for a football coach, and then walk down the hall and say, ‘Hey, does anyone want to coach the softball team?’ It leads to a disparity in the quality of the coaching female student-athletes receive."

The Colby student-athletes also alleged inequities in funding, equipment, facilities, and travel allowances. Under the settlement, the school will remodel the women’s locker room and institute better record keeping and policies in the remaining areas. "These areas, along with coaching, fall on the ‘treatment and benefits’ side of Title IX compliance," Yasser says. "That is an area that is getting a lot of attention, and it’s something that administrators need to become more aware of."