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Title IX Ticker -- OCR: Benefits to teams more important than dollars spent

"It is not the amount of the funding. Teams of similar sports, like sports, however you want to refer to them, do not have to receive equivalent dollars," said Beth Downs, a civil rights investigator at OCR, during an NCAA-sponsored seminar on Title IX earlier this year in Boston.

Downs used a hypothetical situation that involved Institution B, which has an enrollment that is 53 percent female and 47 percent male and athletics participation of 47 percent female and 53 percent male -- a disparity of six percent between women enrolled and women participating in athletics.

Sports sponsored by the institution for males are baseball, basketball, cross country, golf, soccer, swimming, tennis and wrestling (including junior varsity programs in basketball and soccer). For women, the options are basketball, cross country, field hockey (including a junior varsity field hockey team), soccer, softball, swimming, tennis and volleyball. The institution plans to add a junior varsity women's soccer team in the fall if enough nearby institutions sponsor JV teams.

The last varsity team was formed for males in 1985 and for females in 1988. There is a coed track and field club team and a women's lacrosse club team.

A seminar participant asked about a donation to the hypothetical program's men's soccer team. A donor gave $5,000 for men's soccer. Does the university need to spend $5,000 on women's soccer to be in compliance with Title IX regulations?

"It's the benefit that those dollars buy that needs to be equivalent," Downs replied. "You need to make sure at least one other women's team has similar benefits to this men's soccer team despite the amount of that funding."

Another question dealt with whether Institution B, with its current program, is in compliance with the three-part test for accommodation of interests and abilities of the student body. The three parts are participation proportionate to full-time undergraduate enrollment; a continuing history and practice of program expansion responsive to developing interests and abilities of the underrepresented sex; and fully and effectively accommodating the underrepresented sex.

Downs said it appeared that Institution B is not in compliance with prong two of the three-part test since it had not added any athletics programs since 1988. And a six percent disparity in participation would not be in compliance with the substantial proportionality test, although it is close.

One participant questioned what percentage of disparity OCR would consider acceptable.

The answer depends on the particular situation, Downs said, noting that OCR appears to be getting more strict about what disparity it will allow. In the past, situations involving up to a six percent disparity have been allowed, but recent policy clarification has reduced the tolerance, she said.

"Basically what (OCR) is saying now is the goal should be zero. The goal should be parity. And then the office will look at any reasonable justifications for why the institution doesn't meet that goal," Downs said.

As an example, she said, a school with some unusual fluctuation in its enrollment rate generally might have justification for some disparity. But she urged seminar participants not to look for ways around parity.

"When you're dealing with OCR, when you're dealing with restructuring your programs, it is important to look at getting to parity, not just doing enough so you can come into compliance with prong one," Downs said.

One participant asked how OCR would look at an institution that, for budgetary reasons, decides to cap its men's sports and enforce minimums for women's participation to achieve acceptable proportionality.

Capping or reducing men's athletics opportunities never was the intention of Title IX, Downs said. She said interpretations of the regulations in some court cases have allowed for capping and cutting of men's programs to bring an institution's athletics program into compliance. But OCR would prefer to see other types of restructuring to bring a program into compliance.

"Although a lot of people say we promote that or we believe that, we really don't," Downs said. "I don't think that's good for anybody politically. I don't think it's any expansion for women and, basically, the spirit of Title IX is promoting opportunities for women.

"I really disagree with (capping), and I think OCR does not promote that."

Another question concerned a situation in which the men's and women's basketball teams play back-to-back, with the women playing at 6 p.m. and the men's team playing at 8 p.m. Should the institution have the men's and women's teams alternate playing times?

Because the later time often is considered the prime time, a women's team should have the opportunity to play during the later time slot, Downs said.

"If no other women's sport received prime-time game times, I think that -- although this might not be a significant violation or a significant enough disparity to be a violation and send the school to enforcement -- it is one disparity that would be thrown in the pot with the rest of them if there were any, and considered toward a violation finding," she said.

"Just so everyone is clear, there is a difference between each component when we look to see if there are disparities. Some of them are significant enough that there would be a violation, but usually we look at the overall program, assess all the disparities and then determine if we think the school is in violation overall with Title IX and the athletics regulations.

"So this would be one disparity if no other women's team received such a benefit."

If the women's team wants to play at the earlier time, does it have to play at a later time that is considered prime time?

"I don't think so. I think that is something we would consider a justification for a disparity in this particular program," Downs said.

But she cautioned that often an institution will tell OCR investigators one thing while athletes provide a different interpretation of the situation. For instance, she said, the institution may say that the women want the earlier time so they are done earlier, but the female student-athletes may say an early game causes them to miss the dinner served at their dorms.

"We would look at why the team wanted to play at 6 p.m. and the benefit of both time slots," she said.

Meanwhile, at Institution B, will adding junior varsity women's soccer bring the institution into compliance with prongs one and two of the three-part test?

Downs said that the new junior varsity program would count toward prong one, but questioned the wisdom of adding a junior varsity soccer program when there already are club sports in lacrosse and track, indicating an interest in those sports.

"If adding junior varsity soccer is responsive to the developing abilities and interests on campus, then the JV program would be good to add. But I would also consider the interests and abilities in lacrosse and track," she said.

As for prong two, Downs said the addition of JV soccer provides a history and continuing practice of expansion, which moves the program toward meeting part two. The addition, however, does not bring the program into compliance.

One participant asked about a Division III institution that sponsors one men's program in Division I: Is a Division I women's program also required?

OCR would analyze the percentages of females that compete by divisions and whether they are above or below the norm, Downs said. It is likely that the institution would have a disparity.

--Compiled by Sally Huggins

Title IX Ticker is a monthly feature in The NCAA News. News and information regarding Title IX and gender-equity issues can be sent to The NCAA News, Attn: Title IX Ticker, 6201 College Boulevard, Overland Park, Kansas 66211-2422.