May 2016 Podcast: Auditing college's Equity in Athletics disclosure reports

By Student Press Law Center

Rachel de Leon, associate producer with Reveal from the Center for Investigative Reporting and PRX, explains how the CIR’s RevealNews.org uncovered exaggerations in colleges’ claims about equal athletic opportunities for women, and how reporters can use federal disclosure forms to break stories on their own campuses. 

Frank LoMonte: I’m Frank LoMonte, executive director of the Student Press Law Center, thanks for joining us for another edition of the SPLC’s monthly podcast, where we run down legal tips of interest to those working in student media. Our guest today is Rachel de Leon of the Center for Investigative Reporting, who’s part of a team that investigated the compliance of the UCLA athletic department, looking at their federal disclosure reports about women’s athletic participation and examining whether in fact those statistics bore out in reality. 

Rachel is a graduate of California State University-Northridge, with a master’s degree in documentary film from the UC-Berkeley School of Journalism. She’s on the staff of the Center for Investigative Reporting, which publishes its work at RevealNews.org. CIR is a nonprofit organization that’s been around since 1977 doing some very high-end, donor-supported journalism work, and we encourage you to check out all their projects online at RevealNews.org. Rachel, thanks for joining us and get us started with how the idea for the project came about and in particular, was there a reason UCLA was chosen?

Rachel de Leon: Thank you so much for having me on. UCLA was chosen because we know we wanted to look into this thing called ‘roster management,’ and one of the lead producers for the Title IX show suggested this as something she had been reading up on. There’s actually a really good New York Times article, I think it was in 2009 or 2011, all about roster management, and they looked into many, many schools and found out that many of them were inflating their female athletic numbers and doing kinda funny stuff like counting male practice players as women, which is totally allowed and actually required by the Department of Education. So the reason why we looked into UCLA is because I was able to download the Equity in Athletics Disclosure Report on the [Department of Education] website, which is something you’re able to do when you click “Get data for one institution.” I was able to sort the data just by rowing for women, and I saw that the top three schools on there with the largest rowing teams were the University of Alabama, University of Wisconsin, and UCLA came in third. 

So we started looking into UCLA because they also had a large number of male practice players being counted as women, which again is not unique to UCLA; Alabama has the same, as do many other schools. The reason why we decied to focus on UCLA was, the timing was right, they had a race coming up nearby and so I went to a race and saw myself that there was nowhere near the 127 [athletes] that they reported on their EADA report, which alone would not put them out of compliance or wasn’t a huge red flag. But just after talking with some of the parents there, I realized that the number that they were putting at the entire team was closer to 50 and that matched their online roster, so that was a big discrepancy. I began to wonder, “Where are all those other rowers?” So that was what began the quest.

Frank LoMonte: You mentioned the EADA. For those who haven’t worked with this before, the Equity in Athletics Disclosure Act is a federal law that Congress passed as an amendment to Title IX back in 1994, and it’s exactly what it sounds like. It is a requirement that colleges annually file with the Department of Education a disclosure report that can be a real gold mine for journalists investigating college athletics. It has an entire tab that looks at participation by sport, by men and women, as well as what coaches are paid for coaching men’s and women’s teams as well as the revenue and expenditures for each sport. It’s impossible to read one of these reports and not get at least one story idea out of it. But as Rachel and the team at the Center for Investigative Reporting found, your reporting only begins with those disclosure forms. You have to sometimes look behind the disclosure forms to see if the numbers are too good to be true. And I should mention that these forms are posted by the U.S. Department of Education on a centralized website, but there are, at times, lags in the Department’s updating that database. Those should be available on request from the individual institutions; federal law requires them to make them available on demand. So if your institution’s report isn’t up there for some reason, or if it looks to be out of date, go to the institution itself and ask for it. Going forward in your story, Rachel – you get this idea, your eyeballs don’t match what the statistics are telling you. You’re seeing that in fact the number of participants on the team is nothing like what the university is claiming. So then, how do you go about verifying your suspicions, and what roadblocks and impediments did you run into?

Rachel de Leon: The EADA report, I kept hearing from people, is like the first line of defense against unequal treatment of female athletes. But whenever you talk to former Office for Civil Rights investigators, people who actually know a lot about this – I talked to compliance experts – they’ll tell you the EADA report is pretty useless when it comes to people actually trying to figure out how many athletes are participating on a team. So where they go instead is, they look at something called the NCAA squad list. And that squad list is going to have much more detailed information such as whether a player or participant left the team midyear, when they came on the team, whether they’re redshirted for eligibility, if they’re medically retired. So there are these key differences in what might is put on an EADA report and what an investigator might look at for Title IX compliance purposes. We had to be very careful in making sure that in our piece we never said that UCLA or any other school was out of compliance, because that is something that only the Department of Education and the Office for Civil Rights can determine. You do have to be very careful with that, and the EADA on the home page does make very clear that these are not necessarily the same numbers that would be used for Title IX purposes. 

So putting that disclaimer out there, the next step I had to do after looking at the online roster and then looking at the EADA report was to request under a California Public Records Act request for the NCAA squad list. And it took about a month for them to get it back to me. The records department at UCLA requested, not an extension but they told me how long it would take because they had to go outside departments. And what I got back from them, about a month later I think it was, was a letter explaining what they were giving me and the redactions they were making. And then I got the document back with the redactions, and they redacted almost the entire page for all 94 pages. The only information they left on there was the total number of scholarships they were giving out and the total amount of scholarship aid. Otherwise, everything was blacked out. I had no names. In fact, the document didn’t even come with signatures, which makes no sense, because the reason why they were telling us they were redacting the document was for student privacy. They were claiming that this would violate personal privacy laws and also this would be revealing student information that would be protected by FERPA. 

So when I saw that, my editor and I discussed how we were going to challenge this, and we challenged it on the basis that, you know, anyone who’s going to be on the NCAA squad list would probably be on the team as an athlete. For the football team, for instance, these players have online bios that go really detailed into their height, their weight – very personal information is given up in these online rosters. So we argued that the privacy there is not an issue. Their names are posted everywhere – it’s on the back of their jerseys. We should be able to see that. And then we also argued that by not giving us the signatures on each of these – for every sport, typically you would see a signature at the end of every page signing off on when the document was finalized and who was signing off on it. Because there were no signatures, to me this did not indicate that it was an original document. So I argued that I would like to see the signatures to verify that it was a true and real document. And sure enough, we got a response back from them, it must have been maybe one or two weeks later – just a few days before we had to wrap the show – and they gave us the names. They still did block out lots of other information, like what status the athlete has, whether they’re redshirted or not, whether they’re medically retired, what year they are – I have no idea what years any of these people are – but having the names was enough to go off of. So at that point I just started calling as many people as I could who were on the squad list but not on the online roster.

Frank LoMonte: Just for people whose mouths are hanging open right now at the possibility that the names of people participating in competitive intercollegiate athletics could conceivably be withheld as a matter of FERPA confidentiality, there are several answers to this, common sense being only one of them. There is actually a recognized exception in the federal FERPA privacy statute for participation in interscholastic activities like athletics. The names of people on a sports team or a debating team – any type of extracurricular activity – is not covered by federal FERPA confidentiality, so FERPA is never the right answer when a journalist seeks access to records containing those names. Now, California happens to have a uniquely broad state privacy statute that works as an overlay like belt and suspenders over FERPA. There are those who believe the California statute is even broader than FERPA. It’s yet to be tested in court the way FERPA has. We certainly believe that the two of them should be read to be congruent, but that has yet to be borne out one way or the other in court. Nevertheless, what Rachel and her colleague Julia Chan at CIR did was really very clever. You can read their work at RevealNews.org under the headline, “Ridiculous Redactions: How UCLA Blocked Access to Documents.” What they did brilliantly was to obtain comparable records from another college, which showed that other colleges routinely do give out the rosters of competitive athletes, without any privacy concerns whatsoever. Having shown that to UCLA, it helped break the logjam, so bravo for that masterstroke.

Rachel de Leon: Thank you, yeah, we weren’t sure whether it was going to come through but it was a rather pleasant and shocking surprise.

Frank LoMonte: So you’re able to find out by both viewing this roster document and following up with your own interviewing that in fact the numbers claimed by UCLA on their gender equity report didn’t bear much relation to reality and that in fact active participation was a fraction of the number of female rowers claimed. So what happens next? You take this information to UCLA, and what are the consequences and the results?

Rachel de Leon: We sent UCLA our findings, and at that point in time I told them at that time that we had 30-something people who said that they were never on the team but are listed on the NCAA squad list. There was a difference of three, so on the NCAA squad list there were 130 names, and as I mentioned on the EADA report there were 127. So I knew that for some reason they weren’t counting three people, but the fact that I had way more than three people who were saying they were not on the team was a pretty important finding, I thought. And their response to us was that everyone listed on the NCAA squad list is a participant per the EADA guidelines, and of course I pushed back on them. 

They and I were looking at the same document, which is something called the EADA Report Guidelines, and I think they put this out every year. So I was looking at the most recent one, and there are three ways that a school can count a student-athlete as a participant on this report – which are different, again, for Title IX purposes, but we’re just focusing on gender equity here. The three ways are, number one, you are on the varsity team roster, your name is listed on the roster as to the first day of the scheduled contest, which is different for every team. So the first way is, you are listed on the roster. The second way is, you are receiving athletically related student aid – a scholarship, basically. And then the third would be that you are practicing with the varsity team and receiving training from the coaches. So for these people who told me – many people told me that they only went to practices, maybe they didn’t even complete them all the way – but a lot of them went to the practices but were ultimately told that they were not on the team. The way that they were told is, there was a list that was distributed with names of people that had made it on the team, and their name wasn’t on it. So for those people I pushed back on UCLA and I said, “How would you consider these people to be a participant, given these three ways that the Department of Education lists out,” and I never got a response back from them. So that was where it landed.

Frank LoMonte: Were you able to conclude, either through your own reporting or through consulting with the U.S. Department of Education, whether it is in fact legal for a college to count somebody as a team participant when perhaps their involvement was limited to just showing up for an initial tryout and not making the team?

Rachel de Leon: I am working on that right now. Unfortunately, I continue to not get any specific response back from the Department of Education. They have told me a couple of times, they just refer me back to this guide, that if any of these students meet any of these qualifications, then they’re a participant. And I pushed back a few times asking whether someone who tries out for the team and doesn’t make it could be considered a participant, and unfortunately I think from what I’m gathering is, there is a lot that’s open for interpretation. The Department of Education doesn’t say that, when you count people as of the first day of the scheduled contest, it doesn’t say what time of the year that has to happen. They have a few requirements as far as like, it has to count toward something, it can’t just be a practice, it can’t just be a scrimmage that doesn’t count for any points or any kind of moving forward. But yeah, they haven’t responded specifically to my question yet: how can the school count someone that tries out for the team and doesn’t make it? It sounds like they leave that up to the school. Maybe the “varsity roster” is up for interpretation in terms of, “is that just the NCAA squad list?” If so, then I guess they are considered a participant. But I think most people – again, common sense here – if you’re not on the team practicing and you yourself don’t consider yourself to be on the team, I don’t know how that’s a “participant.”

Frank LoMonte: Sure, and the purpose of Title IX was to maximize opportunities for women to have meaningful participation in athletics, and it’s a valid question whether a single tryout or practice could qualify as meaningful participation. It’s also fascinating to learn that men can be counted as participants on women’s athletic teams, and that in fact the U.S. Department of Education seems to have sanctioned and blessed that interpretation. Can you talk just a little bit more about that? Why would it make sense that a man who joins the basketball practice squad to help them fill out the practice squad for the women’s team counts as a participant in women’s basketball?

Rachel de Leon: I talked to several compliance experts about this, and this was the one thing that people kind of agreed about, which is that this doesn’t really make any sense. Schools kind of have their hands tied, in that if they do decide to use a practice squad, it does look like the EADA report guidelines are very clear and they say that you have to count them as a female participant. So when you look at that EADA report that I’ve mentioned for the current year, which is uploaded to their main page, and you look at the boxes you’ll see a number just for the basketball team, for instance, like 36 – that was for UCLA. And when you look at that, you don’t think to yourself, “I wonder how many men are in that?” You probably think to yourself, “Okay, there’s 36 women on the team.” And then you scroll down and you see the total participation numbers, and that 36 is going into that. 

However, there is a caveat box on the bottom where schools are supposed to list how many male practice players they have on women’s teams that they’re counting as women. So they’re doing that, but ultimately those caveat boxes get lost in history. So when you start downloading the archived Excel sheets for schools, when I looked at the previous years – for instance, 2013 and 2014 – I no longer have a way of knowing how many men were on the women’s teams. Now, I’ve been told by the Department of Education that I can go and request those caveat boxes for previous years and that would be available to me. But for me, the point was that it’s not available online and it’s counted in the total participation numbers. So I thought that would be really hard for your average parent or student to figure that out, if they’re trying to make a case to add a team for your daughter or yourself. So yeah, everyone seemed to be on the same page that this made no sense why they’re counted as female participants and I don’t know the reasoning behind it. I mean, I guess [to] the Department of Education, because they’re receiving practice from the coaches and training from the coaches, that makes them a participant. But they’re not allowed to receive athletic aid and they’re not listed on the online roster at all.

Frank LoMonte: We have to wrap up the discussion there, but again I want to encourage everyone to visit the Center for Investigative Reporting’s website RevealNews.org to look up the series on gender equity in athletics. Rachel de Leon, associate producer for the Center for Investigative Reporting, thanks so much for sharing these useful tips with us and thanks for the enterprising work in looking behind these Equity in Athletics disclosure reports.

Rachel de Leon: Thank you, Frank, for having me on, I’m very grateful and happy to talk about this.

Frank LoMonte: For those of you with more interest in any type of investigative public records journalism on campus, we hope you’ll check out the resources available to you on the Student Press Law Center’s website, www.splc.org, follow us on Twitter @SPLC , and send along any questions you’ve got about your own legal rights through our email hotline, that’s splc@splc.org. Thanks so much for listening and we’ll talk to you next month.