Title IX Legislation Analysis

Title IX Legislation Analysis Title IX for South Suburban Bulldogs Athletic Department Introduction I. Brief History of Title IX A. Title IX Defined B. The Test C. Equal Pay Act II. Understanding Title IX Athletics Compliance Introduction A. Title IX Coordinator III. The Participation A. Athletics Team for Purposes of Title IX B. Athletics Participant for Title IX Purposes C. The Test IV. Athletic Benefits Opportunities A. The Laundry List Resources to Educate Athletic Staff to Advance Compliance with Title IX A. List of Resources Introduction Our goal is to commit to institutional control by establishing an organization that is operating in full compliance. Title IX law was passed on June 23, 1972 it was intended to end gender discrimination in education. Title IX offers women an equal athletic opportunity to participate in the sports and this law also applies to all educational programs that receive federal funding, and to all aspects of a schools educational system (Weight Zullo 2015, pg.84). An athletic director must make sure that the athletic department as a whole maintains compliance integrity with Title IX or the school may lose its federal funding as well as be brought up on legal allegations. I. Brief History of Title IX A. Title IX Defined No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance (Weight Zullo 2015, pg.84). B. The Test An athletic program can be considered gender equitable when the participants in both the men and women sports programs would accept as fair and equitable the overall program of the other gender. No individual should be discriminated against on the basis of gender, institutionally or nationally, in intercollegiate athletics(Weight Zullo 2015, pg.84). C. Equal Pay Act No covered employer shall discriminate between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions (www.ncaa.org). II. Understanding Title IX Athletics Compliance Introduction The conduct by a university that violates Title IX is sexual harassment, the failure to provide equal opportunity in athletics, and discrimination based on pregnancy. Title IX is enforced by the U.S. Department of Educations Office for Civil Rights along with several compliance enforcement offices throughout the United States. An Athletic Director must have full understanding of Title IX and the educational institutions role in implementing the law which will make the assessment phase meaningful. According to NCAA Title IX policy any educational intuition that receives federal funding must designate at least one employee to coordinate its efforts to comply and carry out the responsibilities under Title IX law and if an educational intuition does not appoint a Title IX coordinator they are failing to comply with Title IX and may face consequences of noncompliance which can include the possibility of losing federal funding for educational programs. (www.ncaa.org). The athletic director can maintain full control of the department when working with Title IX coordinator to stay updated on guidelines or new rule changes to the policy (www.ncaa.org). A. Title IX Coordinator Title IX Coordinator has a responsibility to fully understand Title IX, oversee compliance, development, and implementation of grievance procedures, and the intake, investigation, and resolutions of complaints of noncompliance. The information of Title IX Coordinator must be available to students and employees and this contact information is required on all recruiting materials published by the covered university (www.ncaa.org). III. Participation A. Athletics Team for Purposes of Title IX When assessing compliance in the area of athletics participation, it is first necessary to determine what teams count. The sport test is designed to determine whether programs or activities outside those sponsored by the NCAA such as mens rowing also qualify for inclusion when determining equity. B. Athletics Participant for Title IX Purposes A school must determine what the number of male and female athletics participants. The Policy Interpretation and 1996 Clarification defines a participant as one who receives the institutionally sponsored support normally provided to athletes competing at the institution involved. C. The Test 3Prong Test (1) provide participation proportionate to enrollment(2) show history and continuing practice of program expansion for underrepresented sex; or 3) fully accommodate underrepresented sex. Two-Part Test: 1) provide equivalent levels of competition (2) show upgrade of competitive levels (Mabry 2013, pg.503). IV. Athletic Benefits Opportunities A. The Laundry List Title IX regulations require that institutions provide equal athletics opportunities for members of both sexes. In order to determine whether or not a school provides equivalent athletics benefits and opportunities the Office for Civil Rights (OCR) will review the following laundry list of treatment issues (Weight Zullo 2015, pg.89). Provision and maintenance of equipment and supplies Scheduling of games and practice times Travel and per diem expenses Opportunity to receive tutoring and assignment and compensation of tutors Opportunity to receive coaching, and assignment and compensation of coaches Provision of locker rooms, practice and competitive facilities Provision of medical and training services and facilities Provision of housing and dining services and facilities Publicity Support services Recruiting Resources to Educate Athletic Staff to Advance Compliance with Title IX As an athletic director the first responsibility is to create a fully complied Title IX sports department. Our athletes as well as staff will be advised on all Title IX policies, procedures rules and regulations. Staff heads will keep updated checklist on all things that pertain to Title IX procedures, attend trainings workshops and weekly newsletters to stay current with all changes of Title IX. Each department head will get a copy of the resources listed below so that there is ongoing awareness about all subjects as it pertains to Title IX. The Title IX Coordinator in conjunction with Athletic Director will continue to measure each department on the merits of the 3 prong test. A. List of Resources 1979 Title IX Intercollegiate Athletics A policy interpretation by the Department of Educations Office of Civil Rights (OCR) on Title IX and intercollegiate athletics (feminist.org). 2010 Intercollegiate Athletics Policy Clarification The Three Part Test part three (PDF) A clarification letter from the OCR withdrawing the 2005 additional clarification on the three part test part three, and all related documents accompanying it (feminist.org). Equity Assistance Centers Funded by the U.S. Dept. of Education 2011-2014 http://www2.ed.gov/programs/equitycenters/contacts.htmlContact the Civil Rights Act Title IV Equity Assistance Center serving your state. These centers provide technical assistance, training and resources on education equity issues related to gender, race, and national origin to state departments of education, local educational agencies, and schools upon request (feminist.org). National Collegiate Athletic Association (NCAA) Gender Equity http://www.ncaa.org/gender_equity and http://www.ncaa.org/lgbt NCAA is a voluntary membership organization through which the nations colleges and universities govern their athletics programs (feminist.org). The Legislative Services Database (LSDBi) is a useful tool for looking up bylaws and bylaw interpretations, which are published responses to specific questions about NCAA guidelines. The LSDBi has the advantage of being updated continuously throughout the year (Weight Zullo 2015, pg.78). Conclusion The Department of Educations Office of Civil Rights created three paths to demonstrate compliance with Title IX. A university will not have to worry about any violations of Title IX when they continue to operate within the margins that the percentages of male and female athletes are about the same as the percentages of male and female students enrolled at the school , that the school has a history and a continuing practice of expanding athletic opportunities for female students, and finally even though it is not offering its female students substantially proportionate opportunities to play sports, the school is nonetheless fully meeting female athletes interests and abilities (Weight Zullo 2015, pg.89). The goal is not to create an atmosphere of tension but of compliance and awareness to all student athletes and staff members. References Ladda, S. (2012). Examining Title IX at 40: Historical Development, Legal Implications, and Governance Structures. Presidents Council on Physical Fitness Sports Research Digest, 13(2), 10-20. Mabry, A. M. (2013). Title IX: Proportionality and walk-ons. The University of Memphis Law Review, 44(2), 497-522. Retrieved from http://search.proquest.com.proxy1.ncu.edu/docview/1510497892?accountid=28180 Spengler, J., Anderson, P., Connaughton, D., Baker, T. (2010). Introduction to Sport Law. Champaign, IL: Human Kinetics Publishers. Retrieved on March 6, 2107, From http://www.gallup.com/poll/7663/what-americans-see-title-ixs-future.aspx Weight, E. A., Zullo, R. (2015). Administration of intercollegiate athletics. Champaign, IL Human Kinetics. Retrieved on 3/09/17 From http://www.feminist.org/sports/ATHLETICS%20AND%20TITLE%20IX%20RESOURCES_09202013.pdf Retrieved on 3/09/17 From https://www.ncaa.org/sites/default/files/Title_IX%2BCoordinators%2B%2BNCAA%2Bresource%2B2011.pdf Title IX Legislation Analysis Title IX Legislation Analysis ARGUMENT I. Deference should not extend to an opined unpublished agency letter because it does not carry the force of law. [WS1] The United States Department of Educations Office for Civil Rights (OCR) letter presented here should not be awarded deference because the regulation letter argues that the interpretation the language of Title IX is ambiguous. Title IX provides that, no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program that receives Federal financial assistance. 20 U.S.C. ÂÂ § 1681(a); accord 34 C.F.R. ÂÂ §106.1 (emphasis added). OCR issued their letter challenging the interpretation of language on the basis of sex under Title IX, challenging it on the basis that it is not clear as it relates to gender identity. In support of OCRs letter, respondent proffers the legal standard accorded under Auer v. Robbins. There, the Court afforded controlling deference to an agency letter in form of a legal brief by the Secretary of Labor interpreting the language of regulations with regard to overtime pay under Federal legislation. Auer v. Robbins, 519 U.S. 452, 463 (1997). While Auer accords agencies the highest level of deference when interpreting their own regulations, such deference is only warranted in situations where regulatory language is ambiguous, unless the language is plainly erroneous or inconsistent with regulation. Id; see Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 843 (1984);Mission Group Kansas, Inc. v. Riley, 146 F.3d 775 (10th Cir. 1998; Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (quoting Bowles v. Seminole Rock Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)). Here, the same level of deference to OCR would be inappropriate because OCR interprets language found under Title IX. Title IX is not an agency regulation, but rather federal law, and deference to an agencys interpretation of its regulation is warranted under Auer v. Robbins only when the regulations language is ambiguous, and that is not the case here. Christensen v. Harris County, 529 U.S. 576, 588 (2000) (emphasis added). As such, giving deference to an agencys interpretation of federal law is unwarranted. II. Language under Title IX is unambiguous and clear in its definition of sex. Title IX is clear as to its language, prohibiting discrimination of the basis of sex. When turning to past precedent, many courts have defined the term sex as the biological sex assigned to the person at birth. Johnston v. Univ. of Pittsburgh of Com. System, 97 F.Supp.3d 657, 670 (W.D.Pa. 2015); Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Here, Title IX is clear in its plain language that sex means to be construed as a persons biological sex rather than the gender they identify with. In fact, Title IX makes no mention at all of gender identity anywhere within its language as to be construed as anything but biological sex. We hold a narrow view of the statutory term sex due to its construction under legislative history. Johnston, 97 F.Supp.3d at 677. Because of prior precedent that holds a narrow meaning to the language under Title IX as it relates to sex, and the lack of reference to a persons perceived gender identity, we have to continue to construe on the basis of sex as meaning a persons biological sex and not gender identity. III. Respondent is not likely not to succeed on the merits because Petitioners restroom policy does not violate Title IX. The District Court did not abuse its discretion denying Petitioners preliminary injunction, because Petitioner had a discretionary right under Title IX to implement its bathroom policy. Schools are allowed to provide separate toilet, locker room, and shower facilities on the basis of sex. 34 C.F.R. ÂÂ §106.33 (emphasis added). They may do this so long as such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex. Id. After adopting the restroom policy in dispute, Petitioner installed three single-stall restrooms throughout Gloucester High School. R.21. They also raised doors and walls around the bathroom stalls, and installed partitions between urinals, in an effort to minimize the exposure individuals may experience in restroom facilities. Id. While these new policy measures were put in place, it by no means restricted the very nature of using the restroom facilities, but rather imposed an adherence to using separate facilities that correspond with a persons sex at birth. As such, Respondent was by no means denied the right to use the bathroom, nor was he encouraged or mandated to hold it in, but rather designated a separate restroom facility for convenience. Id. Respondent chose to avoid using the restroom in its entirety while present at school and as a result developed painful urinary infections and discomfort because of that choice. Id. Petitioner had every right under the scope of Title IX to enact its restroom policy, and in doing so, provided all students with an alternative facility that may be used by anyone and everyone, at any time. Its purpose was designed to accommodate everyone, including those, such as Respondent, who suffer from gender identity issues, and therefore Petitioner did not act in violation of Title IX. IV. Petitioners policy does not discriminate because it is within its authority under Title IX. Petitioners policy does not discriminate against Respondent because the plain language of Title IX does not prohibit discrimination on the basis of gender identity. Johnston v. Univ. of Pittsburgh of Com. System, 97 F.Supp.3d 657, 673 (W.D.Pa. 2015). To establish a prima facie case of discrimination under Title IX, Respondent must allege (1) that he was subjected to discrimination in an educational program; (2) that the program receives federal assistance; and (3) that the discrimination was on the basis of sex. Id. at 674; accord Bougher v. Univ. of Pittsburgh, 713 F.Supp. 139, 143-44 (W.D.Pa.1989). Here, Respondent cannot demonstrate that he was discriminated against based on sex. In dissecting the language under Title IX, the phrase on the basis of sex is construed to refer to a persons biological and anatomical sex assigned at birth. Title IX does not prohibit discrimination based on gender identity, nor does it even refer to such language within the legislature. Here, however, there was no discrimination under either light. With regard to Respondents gender identity, Petitioner expressed immediate support when Respondent informed officials that he was transgender from the very beginning. R.11; R.16. Subsequently, school officials immediately changed Respondents name in the official school records and began referring to him using only male pronouns. R.16. Furthermore, Respondent was permitted to use the boys restroom for almost two months before community concerns became vocal. R.17. Here, not only was Petitioner sensitive to Respondents requests and needs, but they were more than accommodating to ensure that Respondent felt comfortable within his educational environment. Petitioners restroom policy took into consideration both community and Respondents concerns. Ultimately, the policys intent is to increase both safety and privacy of all students so everyone feels as comfortable as possible using the restroom facilities. By providing all students with the option of an alternative, private single-stall restroom, the school sought to address everyones concerns of privacy. As such, the policy is, in and of itself, inclusive, not discriminatory, and Respondent cannot state such a claim. V. The restroom policy is motivated by a substantial interest. Petitioners restroom policy is motivated by a substantial interest to increase privacy and safety of all students. Petitioner implemented said restroom policy with the scope of addressing the entire communitys concerns, including Respondents, and provide an alternative solution to the dispute set forth. In Johnston, a transgender university student brought suit against the University of Pittsburgh-Johnstown for his expulsion on the basis of discrimination, following failure to comply with the universitys bathroom policy. Johnston, 97 F.Supp.3d at 664. There, the university argued that the reasoning behind their policy of segregating its bathroom and locker room facilities on the basis of birth sex is substantially related to a sufficiently important government interest.' Johnston, 97 F.Supp.3d 657 at 669; accord Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir.2011) (quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446-47, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). Further, they reasoned that their policy was needed to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex, which was widely upheld by courts for this reason. Johnston, 97 F.Supp.3d 657 at 669; see Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir.2007). Similarly, here, Petitioner inherently undertakes the administrative duty to protect the safety and privacy interests of all their students as an educational body, particularly here because, the students are minors, rather than adults, as in Johnston. Linnon v. Commonwealth, 287 Va. 92, 752 S.E.2d 822, 826 (2014). For this reason, Petitioner has a substantial interest in protecting the safety and privacy of the minor children in its care. Moreover, all students have the right to privacy proscribed under the Constitution, and collectively, those rights outweigh the interests claimed by Respondent. Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981). [WS1]Insert roadmap here under the first sub-issue and then continue with your argument