Boise State

Title IX compliance an ongoing — and costly — challenge for Gem State athletics programs

What is Title IX, and how has it evolved in American schools over the years?

Title IX was signed into law in 1972 and was initially aimed to address gender inequality in sports. Here's how the law got started, and how it expanded over the years.
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Title IX was signed into law in 1972 and was initially aimed to address gender inequality in sports. Here's how the law got started, and how it expanded over the years.

All four of Idaho’s four-year, publicly funded colleges — Boise State, Idaho, Idaho State and Lewis-Clark State — were non-compliant with at least one aspect of Title IX in relation to athletics during the 2017-18 school year, according to data submitted by each school to the Idaho State Board of Education in April.

In individual interviews with the Idaho Statesman, leaders at the four institutions said they plan to pursue gender equity with the enhancement and/or addition of benefits for women rather than the elimination of opportunities for their student-athletes — but achieving compliance will be a costly, time-consuming endeavor.

Changes could include facility upgrades like artificial turf for the Boise State softball team, staffing improvements like additional athletic trainers at Idaho or even an entirely new program, like women’s soccer at Lewis-Clark State.

“The biggest obstacle to compliance is always funding,” Idaho State Athletic Director Pauline Thiros said.

Title IX was signed into law by President Richard Nixon in 1972. While the law itself is only a single sentence, it continues to create a host of gender-equity challenges for universities across the country, and Idaho is no different.

“At the federal level, the ultimate penalty (for non-compliance) is withdrawal of federal funds,” said Sarah Axelson, the head of advocacy for the Women’s Sports Foundation. “So in theory the federal government could say, ‘You have failed to comply with this federal law and therefore you will not receive federal funding.’ However, that being said, this law has been in existence for more than 45 years. How many times has that actually happened? The answer is zero.”

While the threat of losing federal funding has proven toothless historically, schools do face the possibility of lawsuits stemming from Title IX shortcomings.

According to the Office for Civil Rights, there are 13 active lawsuits involving Title IX in the state of Idaho, but none of those are directly related to athletics.

“All too often we see that the burden of compliance is put on those who are discriminated against,” Axelson said. “It takes a student-athlete or a coach to say: ‘Wait a second. This isn’t fair, but I know my rights and I’m going to talk to the right people or file a complaint or file a lawsuit to make sure that the changes are made, not necessarily for me, but for the person coming after me.’ ”

Boise State, Idaho, Idaho State and LCSC have conducted comprehensive assessments regarding their Title IX status within the last year, and each institution is in the process of executing a plan to reach compliance. Those plans require budget increases for women’s sports at a time when money is tight across Idaho’s higher-education system.

“You’re trying to balance the academic needs of the institution, and the athletic needs are secondary and ancillary to that,” said Richard Westerberg, who has been a member of the Idaho State Board of Education for 12 years. “I think everybody recognizes that intercollegiate athletic activity is part of a college education, but the primary function of the institutions in all cases is to provide an academic education and degrees for students. … I think the board understands that there is some work to do for all of the institutions — for some institutions there’s more work to do than for others — but the important part is to get a plan to work toward compliance.”

WHAT IS TITLE IX AND HOW DO SCHOOLS COMPLY?

Title IX states: “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.”

Athletic programs are considered part of those educational programs and activities.

There are three basic parts to Title IX compliance as it relates to athletics: participation, scholarships and other benefits. All three parts must be met for an institution to be considered in compliance.

The NCAA summarizes Title IX compliance as follows:

Participation: Title IX requires that women and men be provided equitable opportunities to participate in sports. Title IX does not require institutions to offer identical sports but an equal opportunity to play. Participation compliance can be met in one of three ways: 1. Provide participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment of full-time undergraduate students; 2. Demonstrate a history and continuing practice of program expansion for the underrepresented sex; 3. Fully and effectively accommodate the interests and abilities of the underrepresented sex.

Scholarships: Title IX requires that female and male student-athletes receive scholarship dollars proportional to their participation.

Other benefits: Title IX requires the equal treatment of female and male student-athletes in the provisions of: (a) equipment and supplies; (b) scheduling of games and practice times; (c) travel and daily allowance/per diem; (d) access to tutoring; (e) coaching, (f) locker rooms, practice and competitive facilities; (g) medical and training facilities and services; (h) housing and dining facilities and services; (i) publicity and promotions; (j) support services and (k) recruitment of student-athletes.

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Boise State is considering adding lights and a video board to the Boas Soccer Complex to address gender equity needs identified by a national Title IX consultant the university hired to identify potential compliance concerns. Darin Oswald doswald@idahostatesman.com

BOISE STATE: SCHOLARSHIP DISPARITY REQUIRES IMMEDIATE ACTION

Boise State is the only institution among the state’s four-year, publicly funded schools to meet the participation requirement using the substantially proportionate factor.

During the 2017-18 school year, women accounted for 54.3 percent of the university’s undergraduate enrollment and 54.4 percent of its athletic participants.

Boise State did not, however, meet the proportionality standard for the second part of Title IX compliance as it relates to scholarship aid, showing a 2.1 percent advantage to its male student-athletes.

“We want to fully fund our women’s sports,” Boise State Athletic Director Curt Apsey said. “... Our goal is to make sure that we’re giving them what they need, and we’ve got some work to do in that area. That will be addressed immediately.”

Apsey said maximizing the athletic department’s current women’s roster capacities should bring Boise State back into compliance with the scholarship portion of Title IX.

Boise State conducts Title IX evaluations on an annual basis and hires an outside consultant to assess the program every three to five years. An evaluation of the department for the 2017-18 school year was recently completed by Good Sports Inc., and Boise State is now in the process of addressing the most immediate concerns outlined in the report.

Facility upgrades for softball, women’s soccer and beach volleyball as well as improved women’s locker rooms for many sports will require significant funding, but the university has not yet put a monetary figure to those needs. The softball and soccer facilities are in need of lights, Apsey said, and a video board could be added for soccer and artificial turf for the softball team at Dona Larsen Park.

Apsey concedes the installation of lights and a video board in time for the 2019 soccer season, which starts in August, isn’t a realistic timetable, but a decision on the subject is imminent.

“I don’t think we can wait very long. We’ve got to make a decision on what we’re going to do,” Apsey said. “... I could certainly see us making this realistic by the next season.”

Boise State could face more Title IX concerns once the baseball program begins play in 2020 and potentially moves into a new stadium in 2021.

“All areas of compliance need further consideration as the baseball program enters into their first competitive season,” according to the Good Sports report.

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The University of Idaho hired an outside consultant to provide an overall assessment of the athletic department, including reviews of its organizational structure and Title IX compliance. Darin Oswald doswald@idahostatesman.com

IDAHO: UNIVERSITY AIMS FOR SWIFT REFORM

Shortly after he was named Idaho’s acting athletic director in early April of 2018, Pete Isakson began the process of addressing the university’s Title IX compliance issues.

Facing a budget deficit for the second straight year had put three sports — women’s soccer, men’s golf and women’s swimming and diving — at risk of being cut.

The university already was struggling to meet the participation and scholarship standards of Title IX, according to data from the 2017-18 school year that Idaho submitted to the State Board in April of this year.

Athletic participation in 2017-18 did not mirror student body enrollment, which was 52.3 percent male and 47.7 percent female, with a 2.7 percent disadvantage to females because men made up 55 percent of athletic participants. That gap increased to a 4.5 percent disadvantage to females in scholarship money. A school must be within a 1 percent differential to be compliant, according to State Board documents.

Idaho chose to hire an outside consultant to provide an overall assessment of the athletic department, including reviews of its organizational structure and Title IX compliance.

Cheryl Levick, founder and CEO of CLL Business Enterprises LLC, spent nearly five months analyzing the Vandals’ athletic department and submitted a full report to university officials in April 2019. Levick is a former athletic director at Georgia State, Santa Clara and Saint Louis University.

“We knew some areas where there were no-brainers. We didn’t necessarily need the report to go ahead and start working,” Isakson said. “But we knew that we needed the report (for some areas). We got the report at the end of April, and we’ve been working diligently on it since.”

Levick’s report made 99 recommendations, 56 of which were regarding Title IX.

Isakson estimates it will cost between $800,000 and $2.5 million to address all the Title IX recommendations in Levick’s report. Some of the big-ticket expenses include upgrading the practice field used by the football, soccer and track teams, renovating locker rooms for women’s soccer and swimming and adding at least one additional athletic trainer and academic adviser.

“This is a very, very complex issue. It’s going to take many different folks. It’s not going to fall on the head of one person, because one person certainly can’t do everything in this (report),” Isakson said. “... All of us are going to be working together, and we’re all going to work regularly and meet regularly to insure that we’re having success in this area.”

Isakson said the university plans to ask the State Board for a larger spending cap — the total amount of general education dollars the school is allowed to spend each year on athletics — but additional funds to address gender-equity needs also could come from greater spending efficiency, new revenue sources and fund raising.

Idaho also expects to move closer to Title IX compliance thanks to its transition from the Football Bowl Subdivision to the Football Championship Subdivision in 2018-19, which decreased the number of football scholarships the university can carry from 85 to 63.

“Every decision we make, we need to make sure that we have Title IX in our mindset,” Isakson said. “It might seem like not a big deal to make a decision for one sport to do one thing, but it could disrupt Title IX in the process.”

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Idaho State is in the process of developing a five-year plan for gender equity that addresses current issues and presents a path to expand opportunities for women and improve the quality of experience for all student-athletes. Idaho State Athletics

IDAHO STATE: BENGALS TO CREATE FIVE-YEAR PLAN

Idaho State has not had an active gender-equity committee since 2013, according to a report submitted to the State Board earlier this year.

When Thiros was appointed interim athletic director in August 2018, the university retained the services of Athletics Staffing & Consultants to perform an outside review of its Title IX compliance status.

The report revealed that, without continuous oversight, Idaho State had fallen short of Title IX obligations relating to other benefits, opportunities and treatments afforded to sports participants.

Idaho State requested — and was granted by the State Board in April — a $125,000 extension to its spending cap to immediately begin addressing the inequities.

“We knew that we wanted to have a gender-equity committee in place, because I think it’s just the right thing for every athletic department to do, to have that committee that’s constantly looking at that issue so it’s not allowed to reach imbalances that just build each year,” said Thiros, who was promoted from ISU’s interim to permanent AD in March. “... We wanted to appoint that committee, but we wanted to have an informed committee, which is the reason that we had a review, so that it could inform the committee’s work and really give a good place to start and a good understanding of where we sit and where we need to make improvements.”

The university is in the process of developing a five-year plan for gender equity that addresses current issues and presents a path to expand opportunities for women and improve the quality of experience for all student-athletes.

Idaho State hopes to eventually achieve substantial proportionality, meaning athletic participation mirrors the corresponding percentage of males and females that make up the school’s student body.

According to data from the 2017-18 school year, males made up 46.1 percent of ISU’s student body and females 53.9 percent. Athletic participation included 192 opportunities for men and 191 for women — equating to a 4 percent disadvantage to females.

Idaho State is closer to meeting financial aid requirements, with a 1.6 percent disadvantage to females.

Idaho State has not yet put a monetary figure to its Title IX compliance. However, the student body has agreed to a $10 student fee increase per semester to help meet gender-equity needs. There also are plans in the works to renovate Davis Field for the track and field and women’s soccer teams. Renovations will provide an improved venue for practice and competition for at least 65 female student-athletes between the two sports.

“The exact cost over time will depend upon if and when a women’s sport is added, and what sport that may be if that is what is decided,” Thiros said. “Additional costs, and the ones we are working to fund right now, involve additional coaches and generally increased operating budgets for women’s programs, and we are growing into those increases as we are able.”

Other measures include increasing recruiting and travel budgets for women’s teams.

“As we develop and add opportunities, we want to do it thoughtfully. We want to make sure that they make sense,” Thiros said. “We want to make sure that when we add those opportunities that those women are going to be having great experiences, they’re not just going to be satisfying a number.”

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Lewis-Clark State College has already been approved for a one-time increase to its spending cap of $115,000 to address gender equity needs. The college is also working on a five-year plan that would include the addition of women’s soccer. Becky Paull LCSC Athletics

LCSC: ACHIEVE COMPLIANCE WITH ADDITION OF WOMEN’S SOCCER

Lewis-Clark State College likely has a longer road to compliance than the state’s three other publicly funded colleges.

Known for its education and nursing programs — careers that have traditionally skewed female — LCSC’s student population was 60.8 percent female and 39.2 percent male during the 2017-18 school year. Athletic participation, however, was 56.7 percent male and 43.3 percent female, resulting in a 17.5 percent disadvantage to females.

At the time of the 2017-18 report, LCSC could not meet the substantially proportionate factor, show a practice of continuing program expansion or prove that it had fully and effectively accommodated the abilities of its female population. Thus, the college was non-compliant in participation, which consequently affected its ability to be substantially proportionate in the distribution of financial assistance.

Since she was hired as LCSC’s president in July 2018, Cynthia L. Pemberton has worked with school officials to construct a five-year plan to address gender equity.

Pemberton is a Title IX expert and published author on the subject, including the book “More than a game: One woman’s fight for gender equity in sport.”

The college already has been approved for a one-time increase to its spending cap of $115,000, but Pemberton projects the school will need $1.9 million in additional ongoing funding to begin moving toward Title IX compliance. Plus, the school plans to add women’s soccer with start-up costs of $2.3 million to $2.7 million.

“The main thing that’s so important in Title IX compliance is to know that it’s an ongoing thing,” Pemberton said. “It’s not like you get there and then all the sudden close the book. You always have to be thinking about what the way forward is, and are there areas of continued growth that need to be investigated, so a plan is a road map for a journey that, frankly, may never end.”

LCSC’s first step in moving toward gender equity is to maximize its women’s roster capacities while holding men’s rosters steady, beginning in the 2019-20 school year. This could result in a gain of as many as 24 women’s participants. Pemberton noted that in order to achieve these roster goals, coaching personnel, operating budgets and student-athlete scholarship dollars need to be increased, which is what part of the $1.9 million in ongoing funding would cover.

The second portion of the institution’s plan would involve adding women’s soccer with an initial roster size of 20 participants and the potential to grow to 28 participants over the first three years of the program. The college is considering the possibility of a shared-use facility that would include the city of Lewiston and/or the local school district.

Pemberton says funding for these endeavors potentially could come from increased enrollment, enrollment retention, student fees, fundraising and a move to the Cascade Collegiate Conference in 2020. The change of league alignment should help LCSC save on travel costs.

“It’s always such a controversial issue, and it can create polarization in communities, and that’s unhealthy,” Pemberton said of Title IX. “... We can create win-wins with this, and I am just so encouraged and so pleased that the state of Idaho is taking this seriously and supporting the presidents as we’re trying to move these initiatives forward.

“That’s a cup-half-full scenario. We’re going to make progress and we’re going to get there and things are going to continue to get better. I just believe that and I’m excited because now I am in a position to help make it real.”

Rachel Roberts has been covering sports for the Idaho Statesman since 2005. She attended Northwest Nazarene University and is Boise born and raised.
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