Title IX: Correcting the Count

January 29, 2015
For collegiate athletic directors, an ongoing concern is complying with Title IX, particularly when it comes to providing equal participation opportunities for females. And more and more, they are turning to track and field coaches for help--asking them to carry as many female athletes as possible, if not more.

This spring, The New York Times published an investigative report on how NCAA Division I athletic departments count athletes for Title IX purposes, which shone a light on some less than ideal practices. In studying track and field and cross country teams, the article uncovered programs that appeared to be including female athletes on their rosters who did not fully participate in the sport.

The University of South Florida's program was examined in depth, with the Times reporting that the school listed 71 athletes on its 2009 women's cross country roster. The newspaper found that only 28 team members competed in at least one race during the 2009 season and that three long jumpers on the track and field team who were also on the cross country roster said they were not members of the cross country squad.

USF Associate Athletic Director Bill McGillis told the St. Petersburg Times that all members of the track and field team who were eligible for cross country were included on that team's roster. He added that the school would be changing that practice in the future. "I think there's a better way, and going forward, we're only going to include those who fully intend to participate in cross country," McGillis said. "There was no ill intent ... In hindsight, I'm not sure we should have included them."

An accurate count of roster spots is important because of the proportionality prong of Title IX compliance. The most common way for schools to indicate they're meeting the law's requirements of equal opportunity is to show that the male-female balance of athletes closely matches that of the student body.

Counting becomes trickier with track and field, since the NCAA offers runners the opportunity to participate in three different seasons: cross country, indoor track, and outdoor track. Since many runners compete on all three squads, counts are often based on the number of roster spots a school provides rather than a head count of runners, a practice which has been okayed by the Office for Civil Rights (OCR), the body responsible for Title IX enforcement.

Counting athletes who participate on all three teams three times was also recently affirmed by a federal appeals court. In a case involving the University of California-Davis, female wrestlers claimed the school was not compliant with Title IX when it dropped them from the wrestling program in 2001. The school said it did comply with Title IX, in part because it had added several women's teams in the preceding years, including outdoor track in 1998 and indoor track in 1999. The wrestlers argued indoor track comprised basically the same athletes doing the same things they did in outdoor track, and that they should not be counted twice. In 2010, a federal appeals court initially agreed, but later revised its decision to indicate that the number of opportunities to participate determines whether a school is in compliance, not the number of athletes.

"The OCR has been clear in that they consider the three sports to be separate, and they've made that part of their policy guidance," says Janet Judge, an attorney and Title IX expert in Cumberland, Maine. "The policy has been upheld in certain courts, but there are other jurisdictions that have not yet ruled on it, so I think challenges to its legality will probably continue.

"But even working from the perspective that these are three different sports, the important question is whether the people involved in these sports are being given legitimate participation opportunities," she continues. "Coaches can determine this by asking themselves a few questions. For example, are these athletes given uniforms and equipment? Are they expected to practice the same way as other student-athletes? Are they given an equitable opportunity to participate in competitive events? If the answer to any of these questions is no, then the athletes may not be getting a legitimate opportunity to participate. They can still be members of the team, but they probably wouldn't count under Title IX."

There are no hard-and-fast rules, however, that say attending a certain number of practices or appearing in a certain number of competitions means an athlete is being given a legitimate participation opportunity. "There are athletes in lots of sports who practice every day, but never make it into a game," Judge says. "But if a significant portion of the athletes on one team are not getting the opportunity to compete, it could raise questions."
What makes for a legitimate opportunity came up in a Title IX case involving Quinnipiac University last summer. While the lawsuit focused mainly on whether the school's competitive cheer squad was a bona fide sport under Title IX guidelines (the judge decided it was not), the trial also examined the school's track and cross country numbers.

The judge ruled that the school was improperly counting female cross country runners as members of the indoor and outdoor track teams. He based his decision, in part, on the fact that one of the conditions of being on the cross country team was that the runners also had to be part of the indoor and outdoor track squads. He noted that no such requirement was made of other athletes at the school and that it did not appear to be a common practice at other Division I schools.

"Coaches can run into problems when they require students to participate in multiple sports or tell athletes, 'If you want to run for me, you have to run all three seasons,'" Judge says. "You don't see that in any other sports. Field hockey players don't have their scholarship conditioned on playing lacrosse in the spring."

The judge in the Quinnipiac case removed 11 runners from the school's track team count based on the fact they were either injured or red-shirted during the indoor or outdoor season and thus clearly had no opportunity to compete. He explained that this was a conservative estimate of the number of runners who should not have not counted, but there was no evidence presented that would allow him to determine how many of the cross country runners actually wanted to be part of the track teams.

The Quinnipiac case was complicated by the fact that the men's track team was cut in 2009. As a result, the male cross country runners were only counted once in the participation calculations, further skewing the balance of male and female athletes. Had all the male cross country runners been counted three times as the female runners were, there would have likely been no effect on the Title IX proportionality count since runners of both genders would have been treated the same way.
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