On Tuesday the Department of Education’s Office for Civil Rights announced that it was entering into a voluntary resolution agreement with Erie Community College after its investigation revealed Title IX violations in the distribution of athletics opportunities.
OCR determined that the college failed to comply with any of the three tests that measure compliance with the Title IX regulation that requires equity in the number of participation opportunities for each sex. The college failed the first test, proportionality, because the percentage of athletic opportunities for female students was significantly less than the percentage of female students enrolled at the college. OCR looked at data for three years, the worst of which had a gap of more than 20 percentage points as female students approached 50% of enrollment but received less than 30% of athletic opportunities. It would have taken 122 additional female athletic opportunities for Erie to have complied with the proportionality test that year, and the other years that OCR included in its analysis had disparities that were almost as egregious.
Nor did the college satisfy either of the two alternatives for compliance. The second test measures a “history and continuing practice” of expanding opportunities for the underrepresented sex, The most recent women’s team to be added was lacrosse, ten years ago. Yet in 2009-10 and 2010-11, a few years after adding football, the college eliminated three women’s teams, along with their male counterparts, for budgetary reasons. For this reason, the college does not comply with the second test. The third test requires the college to demonstrate that the interests abilities of the underrepresented sex are fully satisfied even though there is a statistical disparity in opportunities. The college could not satisfy this test either. After dropping three women’s sports, the women who participated in them remained interested in playing. Moreover, the college has a ‘limited mechanism’ for gathering information on women’s interest, one that falls short of a formal process that women can use to request additional opportunities.
Having found the college did not comply with any one of the possible compliance prongs, OCR and the college entered into an agreement under which the college agrees to survey female students’ interest in additional athletic opportunities, as well as assess unmet interest using other information like regional interest and the popularity of certain sports with Erie’s competitor schools. Based on this information, Erie has agreed to add new opportunities for women until the college comes into compliance with either the first or third compliance test. OCR will monitor the college’s compliance.
This resolution agreement should serve as a reminder to all institutions that despite OCR’s increased focus on Title IX’s application to sexual assault, it is still enforcing Title IX’s requirements for athletics. It also reminds community colleges that they have the same compliance obligations as four year colleges.