Sunday, October 24, 2010

OCR Concludes Investigation of Catawba College

When Catawba College in Salisbury, N.C., cut its women's field hockey team last year, Kris concluded that this decision likely violated Title IX, as it served to exacerbate the College's existing disparities between men's and women's athletic opportunities. OCR, it seems, agrees. According to a Letter of Findings, which was forwarded to me by the complainant, OCR determined that the college violates all three prongs of the test measuring equity in the number of participation opportunities available to each sex. First, proportionality is not satisfied, as cutting field hockey means that women are now underrepresented in athletic opportunities by eighteen percentage points, as the college undergrad population is 46% female, but women receive only 28% of athletic opportunities.

As for the second prong, despite some history of adding women's teams (9 teams between 1964 and 1999), the College does not have a "continuing practice" of adding opportunities for the underrepresented sex, as it lacks any sort of procedure and practice to actively determine women's interest levels and respond with appropriate new opportunities (the AD's approach of passively waiting with an "open door" for any reasonable request for new opportunities was not sufficient). Even its recently-announced plans to add women's lacrosse in the future does not constitute a continuing practice, as lacrosse was chosen because it suited the College, not necessarily because it satisfied student body interest. Moreover, OCR will not find that an institution satisfies prong two when it "merely promises to add additional opportunities in the future."

As for prong three, this analysis is usually simple when a college cuts an existing women's teams, as this always serves to generate "unmet interest and ability" among the underrepresented sex. Here, however, the College based its decision to cut field hockey on the absence of competition in the geographic region. Catawba's was the only Division II field hockey team in the south, and had to travel to Pennsylvania for most of its competition. This is relevant because according to OCR's guidance on prong three, schools do not have to fulfill unmet interest in sport for which there is no reasonable expectation of competition in the geographic region in which the College primarily competes. However, OCR's investigation produced no evidence that the College was otherwise seeking to identify, let alone satisfy female students' interests and abilities. So it could not demonstrate compliance with prong three, and consequently, the regulatory requirement for equity in the distribution of athletic opportunities to each sex.

Additionally, separate from the three-prong test, OCR's investigation revealed that Catawba College violated the requirement that every institution appoint a Title IX Coordinator, someone whose job includes coordinating the institution's Title IX compliance effort and investigating any complaints of noncompliance.

The College has entered into a compliance agreement with OCR that imposes deadlines for resolving these violations. By mid-November, the College must have identified its Title IX coordinator and revised its sex discrimination policy to expressly include Title IX grievances. It must also by that time have taken the first step toward demonstrating compliance with the three prong test by creating an assessment of enrolled female students' interest and ability in intercollegiate athletics, and administer this assessment on a yearly basis. It must also analyze high school participation data and other amateur and community sports in the area from which the College draws students and consider potential interest in other sports sanctioned by the NCAA. From this information, it must produce (by next spring) a plan to satisfy any unmet interest and ability revealed by the assessment.

We'll see what happens, but I predict Catawba College will announce plans to add another women's team.

[thanks, Herb!]