By Laura Smith
Laura Smith is an Assistant Editor at Athletic Management. She can be reached at: ls@momentummedia.com.
Athletic Management, 18.4, June/July 2006, http://www.momentummedia.com/articles/am/am1804/talkingtitleix.htm
This fall, a letter to the University of Cincinnati athletic department brought bad news. Members of the women’s rowing team were filing a Title IX lawsuit, alleging administrators had failed to provide it support equal to that given to the men’s teams on campus. A large part of the complaint focused on facilities: While the baseball team has a new stadium, crew still doesn’t have a boathouse.
At Grand Junction High School in Colorado, another Title IX question is making its way to court. A senior volleyball player who was cut from the varsity team has sued the school for not allowing her to join the j.v. team. According to the lawsuit, the school allows senior football players who don’t make the varsity team to play j.v.
Administrators at Central Michigan University know their department doesn’t pass Title IX’s strictest test, that for proportionality. So CMU is working on another route to compliance, by illustrating that the school’s opportunities for women continue to grow. This year, they are facing the challenge of adding another sport to their offerings.
Title IX continues to be a challenging issue for athletic administrators. In this article, we’ll tell you about some recent cases and discussions in gender equity and what lessons athletic departments are learning from them.
CINCINNATI FACES SUIT
Two port-a-johns for 50 athletes, no electricity, no certified athletic trainer, and little in the way of scholarships. That’s how women’s rowing team members at Cincinnati describe the status of their sport in a suit filed in U.S. District Court. Perhaps most importantly, the athletes want to know why the university has not erected a boathouse—despite a sizable donation several years ago earmarked for one and recent construction of an $11 million baseball stadium.
The lack of support might not constitute a Title IX violation, says Robert Newman, the Cincinnati-based attorney representing the team, if any of Cincinnati’s men’s teams played under similar conditions. “But no men’s varsity sport on the Cincinnati campus is forced to operate under the same conditions as women’s crew,” Newman says.
“The law does not say that every program has to be given exactly the same resources,” says Neena Chaudhry, Senior Counsel at the Washington D.C.-based National Women’s Law Center. “But overall, women’s programs must be given the level of support provided to men’s programs on a campus.”
Cincinnati has stated it does not believe it is in violation of Title IX, and its administrators declined to comment for this article. However, there are still lessons to be learned while the suit begins its journey through the legal system.
The first is that proportionality is only one piece of the Title IX compliance puzzle. Cincinnati added crew to its varsity slate in 2000, increasing its number of female participants. But the team feels it has not been afforded the resources needed to succeed at the varsity level. “The lesson administrators can take from Cincinnati’s situation is that simply adding a women’s sport in order to boost participation numbers is not enough,” Newman says. “Gender equity also means giving that team the support it needs to be successful.”
A second lesson is that any Title IX complaint should be taken seriously and responded to immediately. Newman believes the university may have been able to avoid a lawsuit if administrators had been more responsive to the team’s concerns. He says the rowers ultimately sued because they felt their complaints were falling on deaf ears.
“An effective response starts before anyone complains, with the establishment of a clear system that encourages the reporting of concerns,” Chaudhry says. “Each institution is required by law to have a Title IX coordinator, and that person’s name and contact information should be readily available to coaches and athletes. Coaches and faculty members must also know what to do if someone brings a complaint to them. And as an athletic director, you set the tone, so make sure your message is, ‘I take gender equity complaints seriously. If there are concerns, I want to hear about them, and I will respond.’”
COACH’S CHOICE?
When you think of gender equity, policies governing tryouts may not immediately come to mind. However, Grand Junction High School has learned in the past year that it pays to look at every policy in an athletic department with an eye toward Title IX. A senior volleyball player, Jessica Wieker, has sued the school for not allowing her to play on the j.v. squad after she was cut from varsity. Senior boys who are cut from varsity football and wrestling at the school are allowed to play down to j.v.
For Grand Junction, what may have seemed like an innocuous policy difference is leading to Title IX headaches and bad publicity, no matter the outcome of the lawsuit. The question raised is relevant in every district: When does having different policies for different programs become gender discrimination? According to Chaudhry, applying a “basic fairness test” is the first step.
“Hearing about the different policies for the football and volleyball teams at Grand Junction, my first question as an attorney would be, ‘What is the reasoning behind the difference?’” she says. “There could be a legitimate reason, but the athletic director needs to be very clear on what that reason is.
“‘Because the coach wants it that way’ is not an answer that passes legal muster,” she continues. “Coaches do have discretion to make policies for their programs, but if the results are policies that treat boys and girls differently, that goes beyond individual discretion. That takes you into questions of the law and opens you up to legal liability.”
Her advice: Take a close look at all your policies through a gender equity lens, and educate your coaches to do the same. “Where you find policies that affect boys and girls differently, think about changing those policies, because as the athletic director, you are ultimately responsible,” she says.
PRONGS TWO & THREE
Another Title IX question schools face revolves around the law’s “three prongs” or three routes to compliance. The first test, having percentages of female and male athletes that substantially mirror the percentages of males and females in the school’s student body, is widely seen as the clearest path to compliance. However, some schools are looking at complying instead through Title IX’s other two tests. For Central Michigan University, that means using Prong Two: illustrating a history and continued practice of expanding women’s opportunities.
CMU has been following this route to compliance for over a decade, and this year, a peer-review committee indicated that it was time to add another women’s sport if the school wants to show continued progress. The school's last addition was women’s soccer in 1998.
“The first big challenge is figuring out which new women’s sport will work best on our campus,” says Dave Heeke, Athletic Director at CMU. To start that process, administrators are relying on input from the school’s Gender Equity Committee, which will survey the student body, assess current club teams, evaluate teams in CMU’s conference, and investigate what sports are most popular in its area at the high school level.
“We want to move slowly through this process in order to choose a sport that represents a real opportunity, one where we can have a full-fledged, competitive program,” says Derek van der Merwe, Senior Associate Athletic Director at CMU. “Our measures for that are: Can we provide quality coaching and quality practice opportunities? Are there competitive opportunities? And most importantly, will we be able to fully fund scholarships within the first few years?”
According to Chaudhry, the key to using Prong Two is looking beyond one’s own campus. “On-campus surveys ignore an important reality: In college athletics, the athletes that fill a roster are recruited. They are not often found by looking at the student body,” she says. “If a school doesn’t currently offer a particular women’s sport, it’s very unlikely that women with the interest and ability to play that sport at the college level will be found on its campus. It’s very much a case of, ‘If you build it, they will come.’”
The question of how often a school must add a women’s sport to comply with Prong Two has no precise answer. “If a school does want to use Prong Two, they need to add a sport every few years,” Chaudhry says. “I would say a school that hasn’t added a sport in five years would be pushing the envelope in terms of claiming to have a continued practice of expanding opportunities.”
Title IX offers a third route to compliance, Prong Three, in which a school can comply by illustrating that it is accommodating the interests and abilities of students of both genders on its campus. One year ago, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a clarification to Title IX that allows schools to use e-mail surveys in assessing interest, with nonresponses indicating a lack of interest.
The e-mail surveys have proven controversial, and in response the OCR has reviewed 54 case files involving institutions that used interest surveys. The report found that at least half of the schools used other means to beef up their compliance efforts, and many of the surveys showed problems, including low distribution and response rates. However, the report also states that the OCR believes the model survey contained in its clarification solves many of these problems if followed correctly. After the report, Rep. Lynn Woolsey, D-California, introduced a resolution, which has both Democratic and Republican cosponsors, asking the OCR to rescind the clarification.
Given the current controversy over Prong Three, the clarification has not found appeal among administrators. “Would we consider using Prong Three instead of Prong Two? No,” is Heeke’s definitive stance. “There’s too much still unknown about whether e-mail surveys truly measure interest. The way I look at it, as an athletic director, I need to do what is best for this program, and that is to continually grow our program for the under-represented sex. I’m interested in expanding opportunities for women on this campus. I’m not interested in expending energy looking for ways to comply without creating new opportunities.”
OUT OF SEASON
Does placing a women’s sport in a nontraditional season constitute discrimination? This question made it all the way to the U.S. Supreme Court after a group sued the Michigan High School Athletic Association (MHSAA) in 1998 for placing its state championships for girls in nontraditional seasons. Although the legal arguments have gotten tricky, lower courts ruled that having only girls play in non-traditional seasons is discriminatory and directed the MHSAA to change the sports calendar. Adressing issues of what laws should apply to the case, the U.S. Supreme Court sent it back to a lower court, where arguments were heard in March with a ruling expected in the near future.
More recently, other states and regions have dealt with the question, including eastern Pennsylvania, where girls’ soccer is played in the spring so it doesn’t conflict with field hockey, which is played in the fall. The Pennsylvania Interscholastic Athletic Association (PIAA) holds a state championship for girls’ soccer in the spring for the eastern schools, and it also holds one in the fall, when most schools in the western part of the state play girls’ soccer.
Last year, some female soccer players in eastern Pennsylvania filed a Title IX suit against the PIAA claiming the situation forced them to choose between club and high school soccer or attempt to play both at once. Since male soccer players in Pennsylvania don’t face this choice, three athletes and their families charged the PIAA with gender discrimination.
Brad Cashman, Executive Director of the PIAA, says the association stands by its practice of offering both spring and fall girls’ soccer seasons. Because the setup avoids a conflict with field hockey, Cashman believes it provides more opportunities for the state’s female athletes, not less. The case was voluntarily dropped by both sides in March, and the PIAA accused the plaintiffs of inconsistencies in its position on the issue.
However, Chaudry says the trend across the country is to place girls' sports in their traditional seasons. “Putting only girls’ sports in nontraditional seasons creates inequities that are against the law," she sa;ys. "If schools don’t have enough facilities, coaches, or resources to have both girls and boys in the traditional season, they need to put some boys’ and some girls’ sports in nontraditional seasons, not just girls’ sports."
One example of a successful suit occurred in New York in 2003. Fifty New York high schools had been playing girls’ soccer in the spring, also to avoid conflicts with field hockey. One parent sued, and a judge ordered the schools to move girls’ soccer to the fall, with an appeals court upholding the decision.
In this case, both courts focused solely on the fact that the schools’ nontraditional season didn’t allow girls’ soccer players to compete for a state championship. This constituted such a clear disadvantage, according to the judges, that exploring other issues, such as club conflicts and college scholarship opportunities wasn’t necessary.
PAYING COACHES EQUITABLY
At Holy Cross High School in Covington, Ky., softball coaches saw a big jump in their stipends this year. That’s because the Kentucky High School Athletic Association (KHSAA) reviewed Holy Cross’s coaching salaries and found its softball coaches’ pay not up to par with what it offered its baseball coaches.
The KHSAA individually assesses each Kentucky school for Title IX compliance, and has found that pay equity is a recurring problem. “We believe equitable coaching salaries are critical for gender equity, because quality of coaching determines the quality of an athlete’s experience like nothing else,” says Larry Boucher, KHSAA Assistant Commissioner. “Unfortunately, we regularly see a softball coach, for example, earning $2,000 while the baseball coach at the same school earns $5,000.”
Boucher explains that Title IX does not require schools to pay coaches of girls’ and boys’ teams exactly the same amount, but there must be valid reasons for disparities in pay. He recommends considering season length, number of practices and contests, off-the-field responsibilities, number of players on each team, and coaching experience in making comparisons. “If your baseball coach has 20 years of experience and your softball coach has four, you can take that into account,” he says. “We also factor in that coaching salary budgets may be higher for boys’ sports overall simply because large football rosters require bigger coaching staffs. When you have 75 football players, you are going to need more football coaches. That’s practical.
“However, schools sometimes want to blame football for lopsided spending when it isn’t the cause,” he continues. “What we see most commonly are actual disparities in the coaching salaries of comparable sports, with no difference that justifies the disparity. That is a violation of the law, and schools need to rectify it.”
TITLE IX SUCCESS
The biggest take-home message from the above stories is that complying with Title IX requires administrators to be proactive. They need to think about gender equity in all of their policies, planning, and communication. Some schools, of course, have been doing this for years and boast compliant programs with a strong focus on women’s sports. What can others learn from them?
Last year, Charles Kennedy, a senior instructor in political science at Penn State-York, conducted a study of NCAA Division I schools in BCS and several mid-major conferences (including Mid-American, Mountain West, Western Athletic, and Conference USA) to find which school does gender equity the best. He looked at participation numbers, scholarship awards, coaching salaries, recruiting budgets, and operating expenses, and found the University of Nevada to have the highest scores.
That success is all about taking a holistic view, says Cynthia Fox, Senior Athletics Director for Sports Support at Nevada. “We think of it as a total sports program,” Fox says. “We could not support our women’s programs without having a healthy football and basketball program, and we couldn’t have a total sports program without our women’s programs. It’s not men’s, and it’s not women’s. It’s Nevada athletics, period.”
Fox says she and other administrators determine what each program needs to meet the department’s expectations, then make sure resources match. Administrators also cultivate a culture in which coaches are not afraid to ask for what they need and everyone understands that the goal is a strong overall athletic program. “You need an administrative and support staff for whom it’s all about fairness,” Fox says. “When you’re providing services to men’s basketball, you do the same for women’s basketball. It’s not even a question. It’s just what you do.”
It also helps to not have the administration gender-segregated. “A lot of schools have the senior woman administrator oversee women’s sports, but I don’t think you get true equality until you have oversight of similar sports together,” Fox says. “If someone oversees baseball and someone else has softball, they may be treating them differently. If one person oversees softball and baseball, you have a much better view of how you’re treating each sport.”
Fox says another key is leadership from the top. In the mid-1990s, University President Joseph Crowley and then-Athletic Director Chris Ault (who gave up the position to return to his previous post as Nevada's head football coach) made gender equity a priority, allocating funds to start women’s golf and soccer and reinstitute softball. They advocated for gender equity more broadly, and the state Legislature agreed to grant tuition waivers for female student-athletes, reducing the cost of athletic scholarships to room and board.
When Ault was both athletic director and football coach, he used his stature as head of the successful football program to talk up gender equity. “When the football coach starts talking about women’s sports, it is refreshing to a lot of people,” Ault says. One result was that Nevada has received three separate foundation gifts specifically for women’s athletic scholarships, operations, and facilities.
“My premise was if we were going to have sports, let’s provide the full capacity for the student-athletes we recruit, because there’s nothing greater than to have successful sports, be it male or female,” Ault says. “I said that the more sports we have and the more student-athletes, male and female, that we have participating, the more notoriety we get for our university as a whole. And I firmly believe that.”
Web Resource:
To help athletic directors make accurate comparisons when assessing their coaches’ salaries, the Equal Opportunities Employment Commission (EEOC) has published a guidebook. It can be found at: www.eeoc.gov/policy/docs/coaches.html.
RED FLAGS
To comply with Title IX, colleges and universities in Pennsylvania need to immediately create 8,000 new roster spots for female athletes, according to a study conducted in 2005 by the Philadelphia-based Women’s Law Project (WLP). Researchers analyzed reports from Pennsylvania’s 112 colleges and universities between 2001 and 2004 to determine that while 53 percent of that state’s college students are female, only 43 percent of its student-athletes are—a discrepancy that would require 8,000 athletic roster sports to fix. Most schools studied had “significant disproportionality,” defined by the study as being 10 or more percentage points away from proportionality.
The study also turned up funding disparities, with colleges on average spending 60 cents on women’s sports for every one dollar they spend on men’s sports. Pennsylvania colleges spent an average of 61 percent of their athletic budgets on men’s sports (27 percent on football, 13 percent on men’s basketball, and 21 percent on all other men’s sports), while they spent 38 percent of their budgets on all women’s sports combined. On an individual athlete basis, they spent $1,250 more per male athlete than per female athletes. With football taken out of the equation, they spent $450 more per male athlete.
For scholarships, schools spent $6 million more on men than women, and they spent 50 percent more on coaching salaries for men’s sports than for women’s. Recruiting, however, was where the biggest disparity showed up: Schools spent two and a quarter times as much on recruiting men as they did recruiting women.
According to David Cohen, staff attorney with the Women’s Law Project and author of the report, these numbers should prompt schools to take a hard look at their practices. “The numbers alone don’t prove a Title IX violation, but they are a red flag,” Cohen says. “When you find gross disparity like we did in this report, it certainly suggests that schools are treating men’s sports more seriously than women’s sports. Individual schools need to examine any disparities in their spending and ask the question, ‘Why is this so?’”