Title IX is possibly best known for its prohibition on sex discrimination in interscholastic, intercollegiate, club and intramural athletics offered by colleges and universities who receive federal funds. How many times have you heard someone say (whether accurate or not) that an athletics program decision was “because of Title IX”? If the institution is covered by Title IX (virtually all institutions are), the NCAA expects an active gender equity plan in athletics, and recent guidance from OCR clarifies additional responsibilities of Title IX coordinators in athletics.
New OCR guidance
On April 24, 2015, OCR released a Title IX Resource Guide in conjunction with a Title IX Dear Colleague Letter and a letter directed to Title IX Coordinators. There was limited direct guidance in the past regarding a Title IX coordinator’s role in athletic equity compliance, but this new guidance, in part, provides specific steps OCR expects Title IX coordinators to take to coordinate an institution’s compliance with Title IX in athletics.
Increased Title IX coordinator responsibilities in athletics gender equity
As a refresher, the three primary Title IX areas in which institutions are required to achieve equity in athletics are: (1) student interests and abilities; (2) athletic financial assistance; and (3) benefits, treatment and opportunity in athletics (a.k.a. the “laundry list”).
To coordinate compliance with the Title IX inquiry regarding student interests and abilities, Title IX coordinators should be involved with comparing an institution’s enrollment data to the number of athletic participation opportunities it offers; reviewing the institution’s history of expanding participation opportunities for students of the underrepresented sex; and evaluating whether there is unmet interest in a particular sport, whether there is sufficient ability to sustain a team in the sport, and whether there is a reasonable expectation of competition for the team.
To comply with the Title IX financial athletic assistance inquiry, Title IX coordinators should work with the institution and its athletics departments to ensure athletic financial assistance, including athletic scholarships or grants-in-aid, are being administered in a manner that provides reasonable opportunities for such awards for members of each sex in substantial proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.
For laundry list compliance, Title IX coordinators should oversee and assist in reviewing and comparing the distribution of athletic benefits and opportunities by sex in each of the laundry list factors, including financial expenditures on male and female athletic teams. The 11 laundry list factors are: (1) the provision of equipment and supplies; (2) scheduling of games and practice time; (3) travel and per diem allowances; (4) opportunity for coaching and academic tutoring; (5) assignment and compensation of coaches and tutors; (6) provision of locker rooms, and practice and competitive facilities; (7) provision of medical and training facilities and services; (8) housing and dining services; (9) publicity; (10) recruitment; and (11) support services. By way of example of the level of detail OCR can look for when conducting an audit or investigation, OCR has been known to literally count the number of balls a sports team has when analyzing gender equity compliance.
While not new guidance, institutions should be reminded that Title IX coordinators are also suggested members of an institution’s gender equity committee.
What this means for institutions
If it seems like the duties and responsibilities of Title IX coordinators are ever-expanding (areas of Title IX compliance include: admissions, athletics, counseling, discipline, employment, financial aid/assistance, investigations, recruitment, retaliation, sexual violence and harassment, pregnant and parenting students, etc.), it is because they are. Much of an institution’s Title IX compliance responsibility is falling squarely in the court of its Title IX coordinator. Title IX compliance continues to grow as an area of focus for OCR investigations and for potential institutional liability. It is imperative that institutions stay up-to-date on Title IX obligations and developments and that Title IX coordinators are provided with the requisite training, guidance and resources to ensure institutions can demonstrate compliance in the various areas expected by OCR.