Saturday, April 19, 2014

Complaint to DoJ challenges OCR's handling of athletics complaints

The Title IX Blog has received a copy of a complaint filed with the Department of Justice alleging Title IX violations in the athletic programs at ten California colleges and universities. This complaint is interesting to us because in addition to challenging programmatic inequities at those schools, it calls into question the method by which the Office for Civil Rights' San Francisco office is handling Title IX complaints alleging violations of the three-part test.

According to the DoJ complaint, OCR-San Francisco received complaints in January of this year alleging that 121 California colleges and universities violated Title IX in the distribution of athletic opportunities to male and female students.  The complaint used publicly-available information to adequately allege the institutions' noncompliance with part one and part two of the three-part test.  Specifically, the complaints alleged that athletic opportunities were not distributed proportionately to the gender breakdown of the student body (part one) and that athletic opportunities had not increased for women in a sufficiently recent period of time (part two). Yet, OCR determined that the complainant had not sufficiently alleged that the colleges and universities had failed to satisfy the interests and abilities of the underrepresented sex, in violation of part three of the test.  The agency said it would dismiss the complaints unless the complainant provided more detailed information demonstrating unmet interest.

For ten of the 121 institutions named in the initial complaint -- Point Loma College, Southwestern College, Pasadena College, CSU-Bakersfield, Oxnard College, El Camino College, Moor Park College, UC-Santa Barbara, UC-Berkeley, and Pepperdine University --  the complainant provided responsive information in the form of media accounts from 2004 to 2012 detailing those institutions' decisions to eliminate viable intercollegiate women's teams.  Yet despite the fact that eliminated teams have been held to demonstrate unmet interest, the OCR rejected this evidence as well, this time, on grounds of timeliness.  After unsuccessfully seeking the OCR's reconsideration of this decision, the complainant has taken the unusual step of bringing the matter to another agency with Title IX enforcement authority, the Department of Justice.

I've earlier criticized the OCR for its quick dismissal of so-called mass complaints.  I understand that it may be technically infeasible for the agency to open 121 investigations simultaneously, but requiring detailed information about the presence of unmet interest puts too high a burden on the complainant.  Compliance with part three requires schools to actively and continuously evaluate the level of interest among the underrepresented sex.  Any school that is relying on part three as its method of compliance should be able to quickly and easily respond to request from OCR to show the information they are relying on in making that evaluation.  That is why I've argued the proper response to a mass complaint should be for the agency to request that information from institutions named in the complaint, and then proceed accordingly based on the information received.   

Given my view that the OCR already goes too far in dismissing mass complaints that don't provide specific evidence of noncompliance with part three, I am even more outraged by the agency's unwillingness to consider complaints against a narrower range of institutions, as it was presented in this case, which have demonstrably created unmet interest by eliminating women's teams sometime in the last ten years.  No, that doesn't conclusively prove that unmet interest presently exists but it certainly creates a realistic basis for that highly likely possibility. In my opinion, OCR should have certainly opened investigation of those ten institutions, even if it was unwilling to respond to the original complaint of 121.  I hope that DoJ opens an investigation against the California Ten, and in so doing, demonstrates to OCR-San Francisco the proper handling of Title IX complaints.