The NCAA News - News and Features

The NCAA News -- May 24, 1999

Seminar tackles 'next generation' of Title IX issues

BY KAY HAWES
STAFF WRITER

CHICAGO -- The NCAA's eighth Title IX seminar in the last five years included something to appeal to both the longtime attendee and to the university administrator or general counsel participating for the first time.

The seminar, designed to offer instruction in the most basic elements of Title IX compliance, also addressed the next generation of Title IX issues: sexual harassment, coaches' compensation and equity in the athletic training room.

Of particular interest to many during the May 11-12 sessions was the afternoon devoted to Equity in Athletics Disclosure Act (EADA) forms and issues. The topic was explored from a variety of angles with three consecutive general sessions.

Other new programs included "How to Respond to an OCR Investigation," "Gender Equity in the Training Room: The Application of Title IX" (see page 22) and "OCR Policy on Financial Aid Compliance Under Title IX."

"Sexual Harassment: How Title IX Applies" appeared for just the second year, but it was offered as a general session rather than as a menu choice.

Also in its second year was the well-attended panel, "The Student-Athlete Point of View: Challenges for the 21st Century."

"Overall, we had close to 400 people in attendance," said Janet Justus, NCAA director of education outreach. "We had almost 50 walk-ups, and it was a good mix of people -- athletics administrators, university counsels, private attorneys. We try to have something new for people who have already been before, but we also focus on new attendees as well. To my surprise, the 'Title IX Basics' session was packed again this year."

First-hand experience

Perhaps one of the reasons members find the seminar so compelling is that they actually hear from people who are charged with investigating claims, bringing complaints and filing lawsuits.

In addition to speakers from the membership and private attorneys, other speakers included those from the U.S. Department of Justice, the U.S. Department of Education, the Office of Civil Rights (within the U.S. Department of Education), the National Women's Law Center and the U.S. Equal Opportunity Commission.

Keynote speaker Ellen Vargyas, legal counsel for the U.S. Equal Opportunity Commission, launched the two-day seminar by reminding attendees that Title IX's intent is equity and its application is a reflection of society.

"When all the history of Title IX has been parsed," she said, "equity is the bottom line."

"The endeavor we're engaged in today is not just about sport. But then sport has never been just about sport. Sport has always been highly symbolic of the issues in society."

The student-athlete panel focused on Title IX as an equity issue as well. One former student-athlete, Jennifer Strawley, was a four-year member of the softball team at the University of Pennsylvania. Strawley, now an intern with the NCAA, recounted the many changes her university's athletics programs went through while she was there.

"When I took the field in 1994, there were gross inequities between the men's and women's programs," she said. "Within my next three years, Penn began to address these inequities head on."

Strawley also addressed the issue of dissension among student-athletes when program changes are made.

"It's important to educate student-athletes, both male and female, about Title IX and let them know that Title IX is not to blame for decisions that are really made for financial reasons," she said.

Panelist Kevin Listerman, a student-athlete at Northern Kentucky University, urged administrators to think about how they or their coaches presented program changes to student-athletes.

"Unfortunately, athletes in some cases have been pitted against each other. Coaches blame other programs and other coaches, and student-athletes get caught in the middle," he said.

"Someone will say, 'We can't get new uniforms or another pair of shoes because somebody else is building a field or taking a trip.'

"We're happy with one pair of shoes unless you tell us otherwise. Those are things that, as a student-athlete, you don't think about until somebody tells you you can't have something.

"So don't blame somebody else for it, and please don't put the student-athletes in the middle."

Ted Leland, moderator of the panel and the athletics director at Stanford University, noted that how an athletics department presents program changes, both to the public and to its staff and student-athletes, can make a big difference.

"More and more, people are seeing the destruction you can do in your athletics community by saying we have to do this because of Title IX," Leland said. "A much better thing to say would be, 'We are doing this because it's the right thing to do.' "

The ABCs of OCR

Attendees of the Title IX seminar had several opportunities to learn about OCR investigations, interpretations and policies.

This was the first year for the seminar, "How to Respond to an OCR Investigation," a small-group session that permitted a detailed look at a past investigation.

Ted Ayres, general counsel and associate to the president at Wichita State University, and Darlene Bailey, associate athletics director at Southwest Missouri State University (and formerly of Wichita State), detailed their experiences as the primary liaisons from Wichita State during its OCR investigation.

They offered numerous tips for athletics departments that might find themselves needing to respond to an OCR inquiry.

"First of all, you need to take the complaint very seriously, but don't be defensive about it," Ayres said. "That is entirely the wrong reaction. As you begin responding, you need to have an understanding of the law."

Ayres recommended the use of a multidisciplinary campus response team. The one at Wichita State included the president, interim athletics director, senior woman administrator, vice-president for finances, equal opportunity officer, legal counsel and facilities personnel (because at least one of the allegations in the claim referred to an alleged inequity in facilities).

"Develop healthy communication and dialogue with OCR," he said. "Always come from the perspective that you know and understand the law, and here's what we're doing about it."

Bailey noted that there would be a temptation to focus on the source of the OCR complaint, which could have come from anyone. "First of all, don't worry about where the complaint came from -- move on," Bailey said. "And communicate with student-athletes, administrators and coaches. Try to alleviate finger pointing.

"Make sure the key administrators know the law -- assume they don't -- and along the way, try to get them to realize that it's the right thing to do. Also, continue to demonstrate how changes in your program will benefit your male students as well."

Ayres noted that his in-depth involvement as the university's legal counsel deflected much of the anger that was initially directed at Bailey from those on campus who were resistant to change.

"I was able to put that at rest," she said. "I pointed out that it was inappropriate and that the president wasn't going to tolerate it."

Officials from OCR also offered small-group Q&A sessions specific to Division I, II and III, as well as a general session on financial aid compliance under Title IX.

Sexual harassment and Title IX

Janet Judge, an attorney with the law firm of Verrill & Dana, presented a general session on sexual harassment and Title IX.

"A lot of people have asked me why we have to talk about sexual harassment here," she said. "Sexual harassment is covered under Title IX, and it is a very heavily litigated area right now. It's a topic that's timely and one that athletics department administrators need to think about."

Judge pointed out that sexual harassment was a form of sex discrimination (and as such, covered on what is known as the "laundry list" part of Title IX).

Judge also noted that OCR was upping its presence on campus in this regard and that some OCR offices had made sexual harassment investigations a new priority.

She discussed the two main types of sexual harassment: "quid pro quo" and "hostile environment."

Quid pro quo harassment is a demand for sexual favors in exchange for a student's participation in an educational program or activity. "This is the, 'You date me or sleep with me or you don't get to play,' " Judge said.

Hostile environment harassment is the more pervasive type of sexual harassment, and traditionally, it consists of verbal, nonverbal or physical conduct of a sexual nature that is severe, persistent or pervasive enough to limit a student's ability to participate in or benefit from the program.

Judge also said that new case law suggests that the conduct need not be sexual in nature, but rather harassment on the basis of sex.

Judge gave several examples of hostile environments that could occur in an athletics program. "It may be your trainer, your sports equipment person, your strength coach," she said. "And, it's important to remember that intent does not matter. 'Not meaning anything by it' is not a defense."

Another point Judge added is that the institution bears the responsibility for sexual harassment under Title IX.

"It's important to note that the person who is accused of sexual harassment under Title IX is not who's held responsible; rather it is the institution that's held responsible."

Judge encouraged athletics administrators to have an understanding of their institutional guidelines or policies regarding sexual harassment and to be sure that coaches, staff and student-athletes were educated on the policies. Judge advocated interactive, in-person training in small groups.

"You need to look at how the school-wide policy applies to your athletics department," she said. "The policy should define harassment and give examples of prohibited conduct as well as provide a clear process for a complaint procedure."

Equity in Athletics Disclosure Act

The second afternoon of the seminar was devoted to discussion of various aspects of the EADA. A panel moderated by Charlotte West, retired associate athletics director at Southern Illinois University at Carbondale, featured speakers discussing how EADA forms are used to assess gender-equity compliance.

Neena Chaudry, staff counsel for the National Women's Law Center, discussed how the forms had been used to provide data for lawsuits the center had filed.

Allen Levy, a trial attorney with the Department of Justice, said that his department gets involved with the EADA forms when looking at Title VII claims at public institutions.

"Title VII prohibits employers from discrimination on the basis of gender and race, among other things," Levy said. "As part of our review of Title VII, we decided to look at EADA forms."

Levy said his office is currently computerizing the EADA form data to aid in investigations.

"First of all, we want to know what female coaches are getting paid compared to what male coaches are getting paid," he said. "Next, we're looking at who was hired. We also look for nondiscriminatory reasons that hiring may be that way or that salaries might be set that way.

"We are looking to see if there are Title VII violations out there. Obviously, it's in your best interest to provide correct information so we're not contacting you if we don't need to."

Welch Suggs, a writer for the Chronicle of Higher Education, spoke about the Chronicle's efforts to retrieve and analyze all EADA forms for Division I members. Suggs noted that readers would be able to see top-to-bottom lists rating institution's gender equity in salaries, recruiting dollars and total budget.

In light of the numerous uses of the EADA data, West encouraged a formal process for checking its accuracy. "I know that time and personnel is always an issue, but I do believe that if the Department of Education would have a system of spot checks, that might increase the accuracy of the data," she said.

Additional sessions were spent discussing commonly asked questions regarding the EADA forms and how the collegiate community can shape the new EADA regulations.

"One of the ideas behind EADA was to give prospective student-athletes an idea of the school's commitment to gender equity," said panelist Lloyd Horwich, a policy specialist with the Office of Student Financial Assistance within the Department of Education. "Another purpose was to focus the spotlight on schools not making the commitment."

Mary Frances O'Shea, national coordinator for Title IX athletics for the Office of Civil Rights, noted that the EADA form doesn't show compliance or lack thereof with Title IX, but rather it is used as an informational tool.

"Even though OCR does not have jurisdiction of the EADA, that information can be used by OCR," O'Shea said. "OCR often uses published information to identify schools for compliance reviews."

O'Shea encouraged institutions to select a knowledgeable individual -- or preferably a team of knowledgeable individuals -- to fill out the form.

Michael Driscoll, university controller at Boston College, encouraged athletics administrators to work with their university finance department in completing the forms.

"There are virtually no financial officers attending this conference, and I obviously think that's a mistake," Driscoll said. "It's in your best interest to work together on the EADA forms."

Driscoll pointed out that many institutions have a number of financial statements that are produced each year and that tying the EADA data to those statements can be very helpful.

"So when the OCR walks in the door, you don't ask, 'Where did those numbers come from?' You already know," he said.

Driscoll said most institutions will be instituting new financial systems in the next few years, and that new system installation provides a good opportunity for athletics administrators to approach their financial departments and ask for help.

"It gives you the opportunity to develop relationships with those (financial) offices and make the form easier to fill out," he said. "You say, 'I'm going to need this information every year and you need to help me with this.'"

Seminar participants discussed numerous other issues related to the forms and the various ways the form's questions could be interpreted.

Todd A. Petr, NCAA director of research, noted that the NCAA would continue to be involved in the new EADA regulations as they were being formulated, and he encouraged members to contact the NCAA with suggestions for modifications to the form.