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2018-01-10 OCR Report Re Title IX

The U.S. Department of Education's Office of Civil Rights issued this report following a 2015 gender equity complaint against the University of Iowa.

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2018-01-10 OCR Report Re Title IX

The U.S. Department of Education's Office of Civil Rights issued this report following a 2015 gender equity complaint against the University of Iowa.

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The Gazette
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UNITED STATES DEPARTMENT OF EDUCATIO: REGION V OFFICE FOR CIVIL RIGHTS LUNOs rows 500 WEST MADISON ST, SUITE 1475 ‘CHICAGO. I cogsiisss Movnsova WISCONSIN January 10, 2018 RECEIVED ‘Mr. Bruce Harreid JAN 16 2018 President Usher oflva OFFICE OF GENERAL COUNSEL Towa City, lowa 52242-1316 Re: OCR #05-15-2538 Dear President Harreld: This is to advise you of the resolution of the above-referenced complaint filed with the U.S. Department of Education (Department), Office for Civil Rights (OCR), against the University of Jowa (University) alleging discrimination on the basis of sex. ‘The complaint alleged that the University discriminates against women in the University’s intercollegiate athletic program on the basis of sex. Specifically, the complaint alleged that the University fails to provide equal athletic opportunities to men and women in the: 1, accommodation of athletic interests and abilities: 2. provision of athletic financial assistance: 3. provision and maintenance of equipment and supplies; 4. scheduling of games and practice times; provision of travel and per diem expense: portunity to receive coaching and the assignment and compensation of coaches opportunity to receive tutors and assignment and compensation of tutors: 8. provision of locker rooms and practice and competitive facilities: provision of medical and training st id Faciiti 10. provision of housing and dining services and facilities 11, provision of publicity: 12. iment of student athletes: and 3. provision of support services, its of 1972 (Title CER, Part 106. which prohibit of sex in programs and activities receiving financial assistance fom ihe Department. The University is a recipient of financial assistance from the Department Therefore, OCR has jurisdiction under Title IX over this ‘Tus Department of Eduestion’s mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access wom ed gov Page 2 ~ President Bruce Harreld During the investigation, OCR obtained information from the complainant and the University, interviewed coaches, athletic administrators and athletes, obtained questionnaires from coaches, and reviewed the University’s athletic facilities and equipment and supplies. Based on its investigation, OCR found insufficient evidence of a violation of Title IX regarding the University’s scheduling of games and practice time and provision of travel and per diem, coaching, medical and training services and facilities, publicity, and support services. As to the other component areas, the accommodation of athletic interests and abilities and the provision of athletic financial assistance, equipment and supplies, tutoring, locker rooms and practice and competitive facilities, housing and dining, and recruitment, OCR has not made a finding under Title IX, Instead, the University submitted the enclosed Resolution Agreement (Agreement) on December 29, 2017, in which it pledges to assess its compliance in the issue areas noted and, working collaboratively with OCR, to take proactive measures to resolve any deficiencies identified as a result of its assessments. A summary of OCR’s findings and observations follows Background In the 2015-16 academic year, the University’s full-time undergraduate student enrollment was 25,357 students, with 11,207 male students (48.0%) and 12,130 female students (51.9%). 'h subsequent years, student population has increased overall, with a slight increase each year percentage of female students and a slight reduction in the percentage of male students. In fall 2016, the University reported a full-time undergraduate student enrollment of 24,476 students, with 11,578 males (47.3%) and 12,852 females (52.5%), In fall 2017, the University reported a full-time undergraduate student enrollment of 24,503 students, with 11,512 males (47.0%) and 12,942 females (52.8%).> 16, 2016-17 and 2017-18, the University offered the following 11 intercolle: baseball, basketball, cross country, football if, gymnastics, tennis, track and field (indoor end outdoor), swimming and diving. an iversity offered the following 13 intercollegiate women’s sports: basketball, cross country. 1d hockey, golf, gymnastics, rowing, soccer, softball, swimming and diving, tennis, track and field (indoor and outdoor), and volleyball. The University is a member of the Nationa! Colle Athletic Association (NCAA) and its teams compete at the NC. id wrestling. During the same petiod, the Division I | University joined the Big Ten Conference in 1899 Applicable Legal Standards The Title £X regulation, at 34 C.F.R. ¢ 106.37(c). states. “To the extent that a recipient awards athletic scholarships or grants-in-aid. it must provide reasonable opportunities for su ups: iresisraruiows eduistes/evisirar-uiowe.edu/ileswvsivsg uploads/tall_profite_Lnd id no heir gender.) inl uiowa edwiegiviewcontent.cgi7article= |1S&:context=resistrar profiles (46 students did not report thei gender.) * hupsJiregisirar uiowa,eduistes not report their gender.) jstraruiowa.edw/iles/wysinve uploads fallprofile_20173,pdf (49 students did Page 3 — President Bruce Harreld for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.” The Title IX regulation, at 34 C.F.R. § 106.41(a), states, “No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis. The Title IX regulation, at 34 C.F.R. §106.41(c), states, “A recipient which operates or sponsors imterscholestic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes.” Accordingly, consistent with the regulations and the Intercollegiate Athletic Policy Interpretation’ (Policy Interpretation) issued December 11, 1979 (44 Fed. Reg. T1413 et seg. (1979), OCR investigated whether the University provides male and female students equal cpportunities to participate in its intercollegiate athleties program by effectively accommodating their interests and abilities, in accordance with the regulation implementing Title IX, at 34 CFR. § 106.41(c)(1) and whether the University provides its athletes opportunities for financial assistance in proportion to the number of students of each sex participating in intercollegiate athletics, in accordance with the Title IX regulation, at 34 C.F.R. § 106.37(c). Further, OCR investigated whether the University provides equal athletic opportunities for members of both sexes in the provision of equipment and supplies (34 C.F.R. §106.41(c)(2)); scheduling of games and practice times (34 C.F.R. §106.41(¢)(3)); travel and per diem allowances (34 CER. § 106.41(c)(4)): opportunity to receive academic tutoring and assignment and compensation of ‘ors (34 C.F.R. § 106.41(c)(5) & (6)); opportunity to receive coaching and assignment and compensation of coaches (34 CER, § 106.41 (6,5) & (6)): provision of locker rooms and competitive facilites (4 CER. §1061(0\7) provision of medica! aad taining facilities and services (34 C.F.R. § 106.41(0)(8): provision of housing and dining facilities and services (34 CFR. § 106.41(6)(9)); provision of publicity (34 C.F.R. § 106.41(c\10)): provision 2° (34 CER, § 106.41(c)): and recruitment of student-athletes (34 C.F.R. § L. Accommodatien of Interests and Abilities - 34 C.P.R. § 106.41(¢\ 1) DOR examin io participate in its intercolley andi abi selection 6 whet ale studenis an equal opportunity nd levels of competition at the Universi ities of both sex: ‘nsap.irwarw2.ed goviabouvorfices'tistiocridocs9interp htm] Page 4 — President Bruce Harreld Participation Opportunities OCR applies the foilowing three-part iest (“Three-Part Test”) to assess whether an institution is providing equal participation opportunities for individuals of both sexes with respect to the selection of sports: 1, Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments: or 2. Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of that sex; or 3. Where the rembers of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. fan institution meets any one part of the Three-Part Test, then OCR will determine that the institution provides each sex with equitable opportunities to participate. Each part of the Three- Part Test is an equally sufficient and separate method of complying with the Title IX regulatory requirement to provide nondiscriminatory athletic participation opportunities. If an institution meets any part of the Three-Part Test, OCR will determine that the institution is meeting this requirement Part One: Subsiamialty Proportionate Participation Opportunities re an institution provides intercollegiate level unbers substantially proportionate of the Three-Part Test, wi Participation opportunities for male and female students in the tive full-t undergraduate enrollments. OCR wil! find that the institution is pation opportunities for individuals of both sexes. To jegiate athletic participation opportunities offered at the sity. OCR examined the athleuc team rosters and confirmed athletic participation’ with and ath on rate: ie participa the Unive tine underg with the Policy Interpretation as clarified in 1996. OCR defined e participant as those who are stilutionally-sponsorea support normally provided to athieies competing at the institution involved, ‘medicai and training room services, on a regular basis during 2 spox’s season; and who in organized practice sessions and other team meetings and activities on a regular basis during 2 sport's season; and who are listed on the eligibility or squad lists maintained for each spor, or who, because of neet the criteria above, but continue to receive financial aid an the basis of athletic ability injury, cannot Page 5 ~ President Bruce Harreld 11,207 12,130, 23,337 The disparity between the enrollment rate of women (52%) and their intercollegiate athletic participation rate (49.1%) represented as many as 54 additional female participation ‘opportunities that would have been necessary to add to achieve proportionality, without cutting any athletic opportunities for men.” However, OCR requires substantial proportionality between the participation and enroliment rates, not exact proportionality. OCR would consider opportunities to be substantially proportionate when the number of opportunities that would be required to achieve proportionality would not be sufficient to sustain a viable team; je., a team for which there is a sufficient number of interested and able students and enough available competition to sustain an intercellegiate team. As a frame of reference for determining the size of a viable team, OCR considers the average size of teams offered for the underrepresented sex at an institution. To that end, OCR also examined the participation rates on a team-by-team basis: Athletic Participants 2015-16" baseball/sofiball basketball | “eross country golf 1 “| tennis | indoor track & field | outdoor track & field [swimming and diving gymnastic a ‘wrestling rowing field hockey “In 2014-15, the disparity between the enrollment rate of women (51.7%) and their intercolieg participation rate (5 percentage points, which represented as many as $ additional female parserpation opportunities that would have been necessary to add to achieve proportionality FOGR observed that from 2014-15 to 2015-16, the size of the men’s program grew by 48 athletes. Mes size of the women's program grew by only 7 athletes hile, the Page 6 — President Bruce Harreld The average team size for women in 2015-16 was 34 athletes, Thus, in 2015-16, the size of the disparity (54) was greater than the average size of women’s teams (34), and OCR could not conclude based on this information that in 2015-16, the University provided intercollegiate level participation opportunities for male and femaie students in numbers substantially proportionate to their enrollments. Therefore, OCR considered whether the University could show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the underrepresented sex, in this case females. Part Two: History and Continuing Practice of Program Expansion Under Part Two of the three-part test, an institution may demonstrate compliance by showing that it has a history and continuing practice of program expansion that is demonstrably responsive to the developing interests and abilities of the underrepresented sex. Part Two examines an institution’s past and continuing remedial efforts to provide nondiseriminatory participation opportunities through program expansion, OCR considers the following factors, among others, as evidence indicating an institution’s history of program expansion that is demonstrably responsive to the developing interests and abilities of the underrepresented sex: + Arecord of adding intercollegiate teams, or upgrading teams to intercollegiate status, for the underrepresented sex: * A record of increasing the numbers of participants in intercollegiate athletics who are members of the underrepresented sex; and ‘+ An affirmative response to requests by students or others for addition or elevation of sports. OCR also considers the following factors, amor mtinuing practice of pr others, as evidence that may indicate a ram expansion that is demonstrably’ responsive to the developing erests and abilities of the underrepresented sex on of a nondiscriminatory policy or procedure for requesting addition of sports (in commun uuding the elevanon of club or intramural teams) and the effective of the policy or procedure to stu caiio of a plan of rent implementation program expans ident formation aby Fe the University added 1 cross country, field hockey imming and diving, and volieybali. Additionally, the University added a ng team in 1994-95, and a women's soccer team in 1997-98. the ines wut expansion o badminton, basketball, bowl tack and field, » s Tov Howey Universit the University also provided information showi that that from 1973-75, the eliminated badminton, with 15 - 18 participants. The University claimed that it was Page 7 — President Bruce Harreld elimineted because the head coach left the team. The Complainant provided information that bowling was also eliminated. According to this information, badminton and bowling were eliminated around the same time because other universities dropped the sports and there was not suificient competition in the area, According to the University, it has a Strategic Plan in effect until 2018 “to evaluate and improve gender equity” in its intercollegiate athletics program. According to the University, it did not have any current plans to add or drop any sports in 2015-16 or beyond and, while there have been expressions of interest in sports,” there have been no written requests for the addition of an intercollegiate team or elevation of a club team to intercollegiate status, While OCR acknowledges that the University added women’s rowing in 1994-95 and women’s soccer in 1997-98, which accounted for the addition of 158 female athletes (based on 2015-16 participation rates), the information does not indicate that the University has shown continuing efforts to provide nondiscriminatory participation opportunities for females through a plan of program expansion, particularly because it has not assessed interest, ability, and available competition for women in a meaningful way. Despite expressed interest in adding sports to the University’s athletics program, the University did not demonstrate any plans to expand the program, As the University has not demonstrated a history and continuing practice of program expansion that has been demonstrably responsive to the developing interests and abilities of females, OCR next considered whether the University could show that itis fully and effectively accommodating the athletic interests and abilities of women, Part Three: Effective Accommodation of Interest and Abilities In determining compliance with Part Three of the three-part test, OCR determines whether, w unable to demonstrate substantial proportionality or @ h practice of program expansion, an institution is nevertheless fully and effectively accommodating the interests and abilities of the underrepresented sex. In making determination, OCR considers whether there is: unmet interest in a particular sport: sufficient ability to sustain a team in the sport, and a reasonable expectation of competition for the team Unmet interes in ceiermmining whether there is unmet interest and abil particular sport, OCR uses # broad range of indicator + whether the institution uses nondiseriminatory method: dnletic interests and abilities ¢ © whether a viable & ted but @ ies for men’s soccer and ‘men's and women's iee hockev. but the dates of the inquiries were unknown and no written requests were submit to the University. In January 2015 there was an email inquiry to determine ifthe University would be adding ‘women’s and men's lacrosse. The University responded that it did not have any short term plans to add any sports, but that lacrosse would be the most likely sport co be added. Page 8 ~ President Bruce Harreld © multiple indicators of interest; + multiple indicators of ability; and ‘© the frequency of the institution’s conducting assessments. In addition, OCR evaluates the interests of the underrepresented sex by examining multiple indicators, including: requests by students and admitted students that a particular sport be added; requests for the elevation of an existing club sport to intercollegiate status; participation in club or intramural sports; interviews with students, admitted students, coaches, administrators and others regarding interests in particular sports; © results of surveys or questionnaires of students and admitted students regarding interest in particular sports; * participation in interscholastic sports by admitted students; and © participation rates in sports in high schools, amateur athletic associations, and community sports leagues that operate in areas from which the institution draws its students. Ability OCR assesses whether there is sufficient ability among interested students of the underrepresented sex to sustain a team in a sport by examining factors such as: * The athletic experience and accomplishments (in interscholastic, club or intramural competition) of underrepresented students and admitted students interested in playing the sport: * The opinions of coaches, administrators, and athietes at the institution regarding whether interested students and admitted students have the potential to sustain an intercollegiate team; and . b or intramural level. whether the mapetit e e te o to sustain an OCR alse examines other indicia of ability, including otherwise, that may * Participation in other sports. imtercoll demonstrate ski vonsidered; anc te, interscholastic 0 the par * Tryouts or other direct observations of panicipatio ¢ particular sport in whic! is interest Neither a poor competitive record nor the inability of interested students or admitted students to play at the same level of competition engaged in by the institution's other athletes is conclusive of lack of ability. For the purposes of assessing ability, itis sufficient that interested and admitted students have the potential to sustain an intercollegiate team, Page 9 — President Bruce Harreld Intercollegiate Competition OCR evaluates whether there is a reasonable expectation of intercollegiate competition for the team in the institution’s normal competitive region. In evaluating available competition, OCR considers available competitive opportunities in the geographic area in which the institution's athletes primarily compete, including: * Competitive opportunities offered by other schools against which the institution competes; and ‘* Competitive opportunities offered by other schools in the institution's geographic are including those offered by schools against which the institution does not now compete As noted above, the University is a member of the NCAA, the governing athletic conference that organizes and regulates athletic programs at 1,123 post-secondary institutions nationwide.'® The University is also a member of the Big Ten Conference, a large regional conference that, under the auspices of the NCAA, also organizes and regulates athletic programs at several large, NCAA Division I universities in the midwestern and eastern regions of the United States. The NCAA and the Big Ten sanction competition and offer championships in several women’s sports. OCR noted that the University does not offer several women’s sports sanctioned by the NCAA (beach/sand volleyball, bowling, rifle, skiing, fencing, ice hockey, lacrosse and water polo), and at least one sport sanctioned by the Big Ten (lacrosse). The NCAA has also recognized three emerging sports’! for women: equestrian, rugby and triathlon. None of these sports are offered by the University at the intercollegiate level. The state high school athletic association, the lowa Girls High Schoo! Athletic Union."? sanictions girls’ athletics in one sport, bowling, that is not offered at the intercollegiate level ai the University I y be interest in an int wed by OCR, men’s soc sosse. water polo and ice collegiate Among students and coach ockey wet identified as sports for which there 1015-16, women participated in each of the foliowing club spats water skiing (24), ultimate 2 hi bowling club; students pay to participate joned by the intervi team. In 5). OCR also noted from it 22), sailing (29), lacrosse (1), water poio (18}, and i age site that the University has a co: ’ se, water polo and ic: rsity, ith ey beca ssessed the athletic interests and abilities maintai ceplerineaa-|0Lwhatencas 1 /www cas ora/ahout/resources/med! utp: seaw.ncaa org/abouvresources/inclusion/emerging-sports-women The NCAA recognizes emerging sporis to ‘ielp them: to achieve NCAA championship status. Emerging spor are given 14 years to gain NCAA championship status with a minimum 40 varsity programs, or to show steady progress toward that goa! Jighsau.orgi2014";0/07historsighsau! Page 10 President Bruce Harreld OCR examined evidence of available athletic competition within the Big Ten or the geographic region encompassed by the Big Ten. With respect to bowling, the Big Ten has only one participating institution that has intercollegiate women’s bowling team. However, there are several Division | women’s bowling programs within the geographical region encompassed by the Big Ten, including teams in Indiana, Pennsylvania, New York, and New Jersey. For ice hockey, the Big Ten has four participating institutions that have an intercollegiate women’s team. In addition, there are several Division I women’s hockey teams within the geographical region encompassed by the Big Ten. As to lacrosse, the Big Ten has six participating institutions that have an intercollegiate women’s lacrosse team, and one other seliool in the conference has been evaluating adding a men’s and women’s lacrosse program. For water polo, the Big Ten has two participating institutions that offer an intercollegiate women's water polo team. There are also several Division I women’s water polo teams in New York and Pennsylvania, which are within the geographical region encompassed by the Big Ten. Levels of Competition ‘The Policy Interpretation outlines two factors OCR assesses to determine whether the quality of competition provided to male and female athletes equally refiects their abilities: 1) Whether the competitive schedules for men’s and women’s teams, on a program-wide basis, afford proportionately similar numbers of male and female athletes equivalently advanced competitive opportunities; or 2) Whether the institution can demonstrate a history and continuing practice of upgrading the competitive opportunities available to the historically disadvantaged sex as warranted by developing abilities among the athietes of that sex. OCR reviewed the 2015-16 competitive schedules for all men’s and women’s teams and found that the only two sports that competed against Division I teams in less than 100% of their allowable competitions were baseball and wrestling, which composed 16.2% of the male athbot No athietes or coaches indicat lo OCR that were any problems with the quality of competitive opportunities provided. Accordingly. the information indicates that the t 2's and women’s teams equivalent levels of competition a1 the Division | level nelusion - Accommodation of Athletic Interests and Abi .¢ information shows that the University offered to its existing men’s and women’s teams ICR could conclude whether the University and of competition. Before equivalent levels is femaie crests and abilities © denis, and as appropriate, resolve this component of its athletic james below the Division { le the team played against several colleges who participated in a lyin the season. It won all events in the meet, including those against the Division 1 homie meet ineld on one date ear and lower opponents. Page 11 — President Bruce Harreld Il, Athletic Financial Assistance - 34 C.F.R. § 106.37(¢) The regulation implementing Title [X, at 34 CE.R. § 106.37(¢), provides that “[tJo the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in ... intercollegiate athletics. In determining compliance with this provision, OCR examines whether the University made proportionately equal amounts of financial assistance (scholarship aid) available to the men’s and ‘women’s athletics programs. OCR calculates this by dividing the amounts of aid available for the members of cach sex by the numbers of male and female participants in the athletics program and comparing the results. An institution is considered to be in compliance if this comparison results in substantially equal amounts, or ifa resulting disparity can be explained by adjustments to take into account legitimate, nondiscriminatory factors." If any unexplained disparity in the scholarship budget for athletes of either sex is one percent or less for the entire budget for athletic scholarships, there will be a strong presumption that such a disparity is reasonable and based on legitimate and nondiscriminatory factors. Conversely, there will be a strong presumption that an unexplained disparity of more than one percent is in violation of the regulation implementing Title IX. OCR evaluates each case in terms of its particular facts. OCR reviewed the University’s policies and practices for awarding athletic financial assistance to student athletes. University athletes may receive athletic financial assistance to attend the University if they qualify academically and athletically under the rules of the NCAA, the Big Ten, and the University. In accordance with NCAA Division I rules,'* each sport has a specific number of permissible athletics scholarships. Sports are either “headcount” or “equivalency” sports for purposes of financial aid. Headcount sports have a maximum number of scholarships and a maximum number of athletes who can receive full scholarships. These sports include football, basketball, women’s tennis, women’s gymnastics and women’s volleyball. Equivalency sports have a maximum number of scholarships per team, but the scholarships can be divided among athletes on the team, with some athletes receiving full scholarships or partial scholarships of differing amounts. Al! of the non-headcount sports at the University are equivalency sports on athi According to the Athleties Department. it places no other restrictior s Athletic Di

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