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All NACDA Members
The Nuts and Bolts of Title IX
(Tuesday, June 7 --11:00-11:45 a.m.)

Kathy Noble:

I urge you to take advantage of the people here today who all have something different to offer. The panel today on my right is, Janet Justus from the NCAA; Lamar Daniel from the Office for Civil Rights; on my left, Diane Wendt from the University ofDenver; and Tom Close from OCR. We'll start with Janet Justus. She is the new NCAA Director of Education Services. Janet began her new duties on May 2 of this year and has primary responsibilities for women's issues, student- athlete issues and the Life Skills Program. This position is a part of the new education services group which also includes research, professional development, sports sciences and youth programs. Janet's name is familiar to many of us as she has served as the director of eligibility since 1988 and assistant director prior to that time. She began her career with the NCAA in 1984 as an enforcement representative. Before joining the NCAA, Janet was staff attorney for the Legal Aid Society of Topeka. She holds bachelor's and law degrees from the University of Kansas. Please welcome Janet Justus.

Janet Justus:

Thank you, Kathy. Whenever I hear that description ofwho I am and my background, I recognize that I'm truly a Kansas person. I have been at the NCAA for several years. I recently made this switch to this new role. It's not entirely new. I've been women's issue coordinator for the past year and in that role, I started some of what I plan to do in the new group, Education Services, which I am very excited about and the national office is very excited about it too. We will continue to take input from the membership to help us create this new area.

The primary role I see for myself this year, as I plan and develop this new area, is to make sure that we educate the membership in a very pro-active way on Title IX and gender equity. We need to help the membership be creative instead of reactive in it's efforts to meet the challenge of gender equity .We need to make sure that our young women who want to have equitable opportunity in athletics are not scapegoated and blamed for what we're dealing with now, which is a fact of life. If you heard Susan Bradshaw a moment ago, I thought her ending quote was very good and very timely, that when things become truths are initially ridiculed, then opposed and then are self-evident. The Education Services Group and my new role as Education Resources Director, is all about that. I'm going to limit my time to a few remarks because we have two individuals here from the Office of Civil Rights. We also have a member-institution person who has gone through a compliance review and I think what they have to say is quite valuable.

For this year I'm going to schedule and plan and implement two Title IX seminars. One, I'm hoping to have the first week in November. I'd like to have it in a simple, easy location. The second one, I'm hoping to have in February or March. Those seminars will be a day or a day and one-half and will bring in experts on these issues, ranging from the legal issues to the athletic administration issues to marketing issues. I want to make sure the Title IX or Gender Equity Source Book are distributed this fall.

The third thing I want to do, and want to become an on-going thing, is to create a gender equity resource center in which I can share and distribute materials to the membership who have questions and are looking for answers on ways to help them meet the challenge on their campus. If you call my office, you can get a copy of the Title IX Investigators Manual from OCR. You can get a copy of the Brown court decision which I think is a very well-written court decision, unlike most legal opinions, you can understand it. You can also get a copy of the American Council on Education, which I think is a fairly and accurate description of Title IX and where it is today. You can also get a copy of the Gender Equity Study which showed numbers why we are where we are today looking at trying to change those numbers, which is increasing opportunities for young women.

I encourage you, on your campus, to start. Start talking about what you need to do, to look at your budgets and to look at your program. The people I've been talking to, and I've talked to many people in the membership now, have created committees on their campuses which are broad-based committees. They look at all sorts ofways in which to deal with what needs to be done. That's the starting point. I suggest you get a hold of the Title IX Investigators Manual and look at it. It's not a bad way of evaluating your own program. I also ask that you include your senior women's administrator in this process. I recognize that not every institution has a senior women's administrator identified. Some of our institutions have identified males as senior women administrators. The Committee on Women's Athletics, with whom I'm meeting next week, is going to talk about the role of the SWA. One of the things the committee would strongly suggest is that this person be included in your Title IX review, your gender equity review of your campus. I strongly encourage you to do that.

In the fmal analysis, what the association wants, what the national office staff wants to help you do, is to meet this challenge. Be creative instead of reactive and to be looking at ways to increase opportunities for young women instead of cutting out existing men's programs. It can be done. If you have questions, or if you have good ideas, please let me know. I am a networker for many institutions right now just to make sure they have access to other people. I encourage you to talk to your colleagues. Ask for the information I now have available to you and talk to OCR who are here today. Thank you very much.

Kathy Noble:

Our next presenter is Tom Close. Tom is a branch chief with the Region 8 Office of Civil Rights, U.S. Department of Education in Denver, Colorado. In the last three years, the Denver office staff have conducted more Title IX athletics, interscholastic and intercollegiate compliance reviews and investigations in its eight-state area than any other OCR office. They also provide technical assistance to high schools and universities as time permits. Tom was one of the three investigators who did the compliance review at the University of Montana a year ago. He is largely responsible for this session today. In several settings that we've been in together, he has said that OCR would relish the opportunity to clarify the elements of Title IX to larger groups of university athletics administrators. You can imagine how long it would take for OCR to get around to doing compliance reviews on this many campuses. Today, we are providing Tom, Lamar and OCR with that opportunity .I hope you fmd his message useful.

Tom Close:

When Kathy fIrst made the invitation to visit with you, she said we've got to get to nuts and bolts and get past theory . We, the panel, all feel that 45 minutes is just not adequate. Each of us could use 45 minutes. Thank goodness I'm lucky, because my whole purpose before you now is to present a very brief discussion on a handout you are getting. That handout is a 30-page document. We didn't give it to you now because we know you would be thumbing it and you wouldn't be listening to us. I'm going to walk you through it just momentarily, so you'll appreciate what you have. It's less than one month old and it's done in the spirit of saying, "Let's give you some good advice. Let's give you some immediate advice. Let's talk about the real world."

It is also hoped that this fall, the NCAA may come out with a source book. In other words, good ideas and how to come into compliance. We're not arguing about compliance. We're talking about how you get there. In the process of setting up this meeting, Kathy has developed a tremendous panel. For example, I have a copy of our Investigators Manual that was just alluded to. Lamar is a co-author and a person sitting in this audience is a co-author as a consultant position. So, you've got the authors of the manual in this room. We don't think there's enough time to cover everything, so we want to make ourselves available from 3:00 to 5.00 p.m. today. The handout is called "Typical Violations and Corrective Actions." There are five names I need to mention to you, Kevin, Robert, Diane, Andrea and Kathleen, should be standing up to present this to you. We can't send six people here, so it's my privilege to introduce the work of these six individuals.

What you'll fmd is that it is table of contents by all 13 issues that you are all faced with at the intercollegiate level and coming into compliance with Title IX. You'll also discover that ahead of each component, you'll fmd on top underlined the components that come out of the manual that we look at for compliance with scheduling of games and practice time. Again, that's one of the 13 issues you have to deal with. Then, you'll have some typical violations and typical corrective actions.

This was devised to give you the notion that one violation was worth 1 ,000 words of theory .You've got dozens and dozens of actual violations here. We left in the high school violations. Some of them are very simple. You would be surprised how ordinary and simple some of the solutions for compliance are. The heavy weight issues are also in the manual. You've got coaches' salaries, recruitment budgets and all other tough issues are in the manual as well.

You will discover some common themes as you look through the manual. When you look at corrective action agreements, you will fmd they are generically written. They allow you a series of options. One of the most over used, but correct words in the Office of Civil Rights is we're never prescriptive. We never tell you how to run your athletic program. You may have five ways of solving it. As we write the corrective action agreements, you'll see you have the freedom to make major adjustments. Even the freedom to go from Division I-A to Division II, if that was the decision that you would want to make at your institution. you'll see the freedom to operate your programs that you all fear the federal regulations don't allow you to have. So, take a double look at the corrective action agreements and some samples of that.

It is possible that you would have the identical condition in a violation that you read in this handout at your institution and it might not be a violation. I have to say that to you because we do look at overall equivalency in the men's program and in the women's program. They shake out. Sometimes bad news for the men and bad news for the women cancel out. But, we also thought that if you really saw actual violations, you would appreciate this picture ofwhat it's really about.

Another aspect of this handout that might be of value to you is that you can copy the individual issues as you need them. We didn't run them together and we didn't print it both sides. So, you can break up this handout into the 13 issues and give them to the critical people on your campus. You can split the whole thing up so we're hoping that it's user friendly.

I want to close with a couple of things for you. You will discover that of the 13 issues, the big subject is interest and abilities, what sports you offer, what levels of sports you offer for both men and women. You will discover that we don't say a lot about the corrective actions because the corrective action is basically the fIrst step and that is, conducting the survey that Susan Bradshaw mentioned earlier. We have a few more things after that, but we dealt mostly with the components of the survey. Please understand, this handout understates the real social impact of what has happened with our compliance work, our cases and our compliance reviews. In fact, colleges are adding women's sports. In fact, in one day, one state sanctioned both girls soccer and girls softball and created opportunity systems for over 1,000 athletes. Please appreciate when you get to interest and ability, you'll see the first stage which is survey, but actually, we've had a number of consequential happy endings. In another state, the school system added girls volleyball as a result of the survey. Three years later, they're happily telling us on the phone that they are competing for the state championship. There are a lot of happy endings to this.

I want to close by following a few thoughts that Mr. Schultz spoke about yesterday and I agree. If you can take the challenge of this and use it as you meet challenges all the time, you're going to discover it is not as onerous or as frightening or as diminishing as you might think. The odds are, after you go through a Title IX effort, that your programs are not smaller. The odds are, your program is bigger. This handout is basically an attempt to be proactive to give you something to work with when you leave the room. This coming year, we would like to develop a conference-wide self-assessment model to come into compliance with Title IX where you're all working together in a volunteer proactive way to achieve compliance. That's already on the books. It's in printing. Happily, Susan Bradshaw recommended the same thing to you earlier .

Secondly, this doesn't mean as much to you, but it does mean a great deal to the athletic community as a large. We would like to work with high school activities associations over which OCR has no authority to encourage the implementation of athletics in Title IX compliance in the high school so that you inherit a body of students and body of players that will allow you to come into compliance, as well.

This handbook is in the spirit of giving you something to use daily and it fits also with Susan Bradshaw saying to have a plan. That's the best way to control your fate and to get into compliance. The handbook will help to get you going on that plan.

Kathy Noble:

Thank you, Tom. Lamar Daniel is a branch chief for the Office for Civil Rights in the U.S. Department of Education in Atlanta, Georgia. He has been employed with that organization for 20 years, 18 of which have been involved with the enforcement of Title IX athletics. Lamar has supervised and, in most cases, personally directed the investigation of nearly 70 colleges and universities in the southeastern United States. Since 1990, he has coordinated OCR's technical assistance efforts with respect to Title IX athletics and has provided numerous workshops for NCAA Division I and II and NAIA athletic directors. Lamar has also spoken at such organizations as the College Football Association, the Division I-A Women's Administrators and NAIA Athletic Administrators. The later two workshops were at NACDA's 1992 annual Convention here at Marco Island.

When time peffilits, Lamar provides individual institutions with advice and assists in their planning for the future on matters pertaining to gender equity .Lamar conducted two sessions at the NCAA Compliance Seminar in New Orleans last week and, fresh from the trail, Lamar Daniel.

Lamar Daniel:

Thank you. I'm going to speak very briefly on a subject that people love. They love to file complaints and lawsuits and they apparently love to misunderstand it because this is the greatest misunderstood area of Title IX in, guess what, an accommodation of interest and abilities. Now, regardless of what anybody tells you or whatever you hear or read in the paper, there are three criteria for compliance in this area. You only have to meet one of them. The fIrst of which is, proportionality that many people think is the only criteria. No court has ever ruled that. OCR has never had a violation findings that said that was the only criteria. That's the first one you look at. Why do you look at it? Because you've got to start somewhere. Isn't that a reasonable place to start? It simply was a starting place.

If you don't meet proportionality, there are two others. The second one is history and continuing practice of program expansion. I was reading a law brief recently where an attorney said that schools aren't being given credit for the sports they added in the '7Os and '8Os. Well, that's a history, but that's not a continuing practice because this is the '9Os.

This did pre-suppose some sort of methodology would take place a long time ago that people would maybe add sports and keep up with what was going on and the increasing interest in women's sports. Nobody went about it that way, so very few people do meet that criteria.

The third criteria is whether or not the current fully and effectively accommodates the interests and abilities of the under- represented sex, which if you got that far, is obviously, females. That one has been met before. It's tougher to meet today, not necessarily because of the enforcement of OCR, but because of the increased interest in women's sports. Soccer should stand as a prime example of that in the last few years. In the southeast, crew is another sport that's emerging in which there's a lot of interest on the varsity level. When we do an athletic program or when we review one and we find people in violation, and people sometimes have to add sports, we do hope that it is a case of adding and not having to cut back on the men's program. We certainly hope that you can add the sport.

Those are the three criteria. Proportionality is merely a starting point. It is true, that if you are not proportional, you are subject to the other two. You will be subject to an interests and abilities test over a period of time. This interest is going to come from club sports, more than likely. Most of the sports added recently became club. Schools have been adding soccer left and right. In virtually every case, there were soccer clubs and they were already competing intercollegiately, but at the club level. Crew already has a number of regattas at the club level and even have a national championship, but it's all at the club level. It will probably be sanctioned as a championship sport in a period of time. It's so big in the southeast because between Jacksonville, Florida, and northern Virginia, there's only one varsity crew and that's at the College of Charleston. No one else has it. But, in the state of Florida, where every school is near some puddle of water, this sport is coming into play left and right and nearly everyone is adding it.

Proportionality by itself, if that was the only criterion, could be a legal affmnative action. A number of attorneys tell me it is. I emphasize that is not the sole criteria. Schools have been in compliance with the third program criterion which is the current program. Admittedly, it is the more difficult. The emerging sports that the NCAA Gender Equity Committee designated is another reason for that being more difficult, but not impossible. In certain parts of the country, you're only going to have certain sports in your normal competitive level. In the southeast, they don't play field hockey. It depends on where you are. Some schools offer everything that the NCAA offers championships for, you still may not be proportioned well. I understand one of the Big Ten schools offers everything and they're about 70-30 or somewhere in that vicinity.

I promise you there are three criteria. If you get assessed or sued, you're going to have the opportunity to show that you are in compliance with one of those. That's all the time I have for now. I'll see you later.

Kathy Noble:

Diane Wendt is entering her seventeenth year in the Department of Athletics and Recreation at the University ofDenver, serving as associate athletic director, responsible for marketing, promotions, media contracts and development activities for all varsity and recreational sports. She is the founder of the university's corporate sponsor program which currently generates in excess of $100,000 from 19 business and corporate partners. During 1989-90, Diane served at the interim director of athletics and recreation at the University of Denver. Diane's related activities include service on the NACDA Executive Committee, the NCAA Professional Sports Liaison Committee and she is the president of the National Association of Collegiate Marketing Administrators meeting here in conjunction with NACDA. It is Diane's work on the NCAA Gender Equity Task Force and her gender equity efforts at the University of Denver that brings her to this panel today. Diane has worked diligently to develop a pro-active plan to bring the University of Denver into compliance with Title IX and gender equity through a self assessment and development of an action plan. These are activities that should be happening on all of our campuses before OCR Title IX reviews or discrimination suits. Diane will share with us ideas which may help us on our own campuses.

Diane Wendt:

Thank you, Kathy. I wanted to ask how many in the room do not have a compliance complaint in place? If you do not have a compliance complaint, would you raise your hands. That's wonderful. How many of you do have a complaint filed at this time? Okay. How many of you are currently in litigation? Well, that's good news. That's a very good representative. I want to talk about process today and I would like to talk about the importance of changing culture on our campuses and share with you some of the things we're doing at the University of Denver. There is no need to take notes because there is a complete handout which will list all of the different strategies that we have currently put in place. I will be available from 3:00 to 5:00 p.m. in the Miami Room, so if you think we can be of assistance, please stop by.

I want to start by reading a mission statement that we adapted in December of 1992 at which time we were really trying to construct a process. We created what we call a Gender Equity Task Force on campus and the mission statement for that is as follows.

"The challenge at our institution is to examine all phases of the department of athletics and recreation with regard to gender equity and develop a model in which overall benefits, resources, opportunities and participation available to men and women student-athletes are proportional to the gender demographics of the full-time undergraduate student enrollment.

Currently, the undergraduate student enrollment at Denver is 2,600, 49.7 percent male, 50.3 percent female. Furthermore, the model will be consistent with the University of Denver's strategic plan and successfully address the needs and interests of our student population."

In constructing our Gender Equity Task Force, we wanted to develop a process that would include representation from a broad overview of the campus constituents. Let me share with you how we shaped that. We started with representation from our men's and women's coaching staff and had our coaches get together and elect out of each of those gender classifications their representative. We started with our Student-Athletes Council and did the same. We asked our male athletes to get together and elect a representative. We asked our female athletes to get together and elect a representative. We also included our university legal counsel. At the time, we had an interim dean of the college. We reported at that time through the college. We had tremendous assistance from our associate dean of admissions. We wanted to assess needs and interests and hear what kind of students we were recruiting. We had the assistant athletic director for sports medicine. We had the director of athletics and recreation, without whom the advocacy and the vision for gender equity could never be successfully realized. I wanted to acknowledge that Jack McDonald is that person and he has been absolutely invaluable to the agenda. We had a representative from our faculty athletic committee, the dean of students. We had the fmance manager for our organization. We had the operations and compliance assistant athletics administrator. We had representation from the sports information office. I did serve as the associate director of athletics and primary women administrator. Our director of campus recreation was involved. Finally, our associate vice chancellor for fmancial services. As you look at the list, it will trigger what you think would be representative of the kinds of process that you would need to construct change on your campus.

We did not want to own this issue in intercollegiate athletics alone. It is an institutional challenge and it is much larger than any single individual. The more input that we can generate around how we get to a better place is critical. One of our underlying themes is that the whole is greater than the sum of the parts. Everyone brings a very rich contribution to the table in perception of actions, ratification, short- and long-term planning, and that was invaluable.

We first met in January, 1993. We were meeting once a week internally and the large group was meeting at least once a month. We have been meeting regularly since that period of time. We consult with the following constituents --our affirmative action office and this is on an individual basis now, our university student association because it's critical that the general student body be in tune with what is happening in our organization, our athletics and recreation staff as a whole, we have what is called an athletics trustee affairs committee. Jack and I have an opportunity to brief that group who then advises, recommends, approves or disapproves what our recommendations are. That group then represents the interest of gender equity to the full board of trustees. That has been ongoing for the past year and eight months.

Our chancellor and central administration are very much informed at every step. We consult with the Colorado At Conference. We have put together an opportunity to invite Phyllis Howlett in to construct a dialogue around how, as a conference, we can lay groundwork for a short- and long-range plan to provide commonality of support within the conference to achieve gender equity.

We have consulted with faculty athletics committee, the faculty senate individuals working within the areas of gender equity locally, regionally and nationally, members of our board of trustees, members of the NCAA Gender Equity Task Force, the regional Office of Civil Rights. It's important for you to know that we voluntarily invited the OCR in our region to visit with our staff. Tom Close, who is with us today, and Kevin Dailey, who's legal counsel for OCR came in and spent a full day on our campus with our staff and you have that resource out there. You can get that technical support by sending a letter of invitation to the regional director of the Office of Civil Rights in your region. It was a two-month process to get approval, but we were thrilled to have them on campus. Jack and I stepped out of the room so that coaches could really share collectively, men and women together, full partners, talking about the anxiety that they have and the concerns and potential clarifications that need to come out. There is a lot of misinformation out there and we need to provide support system for our coaches. We also did a lot of consulting with our Office of Communications and with our university legal counsel who was very much involved with every step of our process. This list will trigger the appropriate personnel at your institutions.

Some of the topics we discussed included a review of the 1992 sports participation survey data provided by the National Federation of State High Schools Activities. If you write or call the National Federation, you can get a list. At that time, we were trying to establish our needs and interest. We also reviewed the Colorad0 statistics on participation rates for boys and girls in interscholastic sports. We reviewed the current demographics of our university-admitted students. We think it's more important for our admissions people to tell us what kind of inventory of requests they have for interest in sports on our campus than it is to assess who is on our campus. Because we are a private school, the demographics of who we outreach is not necessarily in sync with what is popular in the state of Colorado throughout the state system. So, we lend a lot more credence to what we're reviewing in terms of interest from our prospective students. We did create an interest survey for our students on campus and, in all honesty, we have given it no weight whatsoever because we do not think it gives us a true picture ofhow to build programming in the future.

We have, when faced with the idea of cutting sports or not cutting sports, tried to expand support without reducing numbers of sports for men. As an alternative to that, we have leveled our sports. We have three tiers. We have identified three Level I sports for women and two for men, because of the numbers of participation in those sports so that we have a mix. In Level I, our goal is a maximum full-ride support. Our Levelll is a percentage of that full compliment and Level III do not have any scholarship support at all.

We have diligently tried to find a better analysis of what true gender equity standards are for facilities. We've made some changes within our current physical plan, short-term. We are hoping to announce the advent of a new facility in November of this year and the plans architecturally are very much in compliance. The square footage is absolutely equal according to our current enrollment analysis.

We have talked about adding or dropping sports. We hope we do not have to do that. We announced our first phase of women's enhancement last year and were able to assign $200,000. We created that through internal adjustments. We have communicated to our staff, all of our coaches and all of our administrative staff that the way to solve gender equity is for all ofus to work at fund raising, marketing and promoting attendance. We are using the new dollars generated through that message to help achieve gender equity .Thank you.