Sports Law Expert

The Drake Group,  a group of academics that challenges the status quo when it comes to the power brokers in collegiate athletics, went after the Department of Education and its recently issued Title IX regulations pertaining to sexual misconduct.

The press release follows:

“May 6, 2020, the Federal Department of Education released new Title IX regulations pertaining to sexual misconduct. Sadly, the new regulations are likely to perpetuate this problem on college campuses instead of preventing it. They will provide less protection for victims of sexual misconduct by college athletes and will require less accountability from athlete-perpetrators. Indeed, they relax scrutiny on athletes at a time when such scrutiny should be increased instead. The best evidence of the need for greater scrutiny is the finding in December 2019 by USA Today, after an extensive study, that college athletes commit sexual misconduct at a rate much higher than other members of the student body. For example, the study noted, “While representing less than 1% of the overall student population, football players accounted for more than 6% of those found responsible for sexual misconduct.”

Even before the release of the new Title IX regulations, The Drake Group urged greater scrutiny of athletes and stiffer penalties for those who engage in sexual misconduct.

The Drake Group finds several of the new requirements generally troubling. These include a definition of sexual harassment that requires the harassing conduct (other than sexual assault) to be so unwelcome that a reasonable person would determine it is “severe, pervasive, and objectively offensive.” Another troubling change is the mandate of live hearings, to include cross-examination, which threatens to discourage victims from coming forward, for fear of being subjected to aggressive, even accusatory questioning.

Still, a few specific requirements have uniquely significant implications for athletes and athletic departments, so they merit special attention. One such change is that coaches, trainers, and other athletic-department personnel are no longer “mandatory reporters.” That is, they need not report to the Title IX office any knowledge of sexual misconduct. Instead, only employees who have authority to “institute corrective measures” are obliged to report and only their reports constitute actual notice to the institution. This cramped interpretation of “institut[ing] corrective measures” fails to recognize that when a coach reports knowledge of sexual misconduct, the coach’s report may well be the necessary prompt to start an investigation that could lead to a hearing and even a penalty. Thus, the report itself is surely “corrective.” Under the new rules, though, a coach has no responsibility to report sexual misconduct to the Title IX office, but is free to assist an accused athlete to obtain legal assistance, perhaps even to silence victims and witnesses, as has reportedly occurred in prior incidents. Further, coaches and trainers should be a mandatory reporters for the male or female athlete victim.  For student-athletes, these individuals most often know the athletes best and often serves as de facto parents, counselors, and mentors for four years. These employees closely observe the mental, physical, and emotional well-being of athletes and changes in team culture.  They may be the first individuals to become aware of athlete distress – the pain of the victim and the team’s knowledge of athlete perpetrator misconduct.

A second change that concerns The Drake Group is that Title IX no longer applies to off-campus incidents or online harassment unless the school has exercised substantial control over both the harasser(s) and the context in which the harassment occurs, or it occurs in a building owned or controlled by an officially recognized student group, such as a sorority or a fraternity. This change is problematic because experience demonstrates that sexual misconduct by athletes occurs most frequently in off-campus housing, notably housing occupied by a group of athletes. And recent years have witnessed several high-profile incidents of online harassment of female athletes by male athletes in the same sport. Under the prior guidance, both off-campus and online harassment would have been subject to Title IX.

On a more positive note, the new rules permit institutions to enact additional rules or processes under their codes of conduct. Given the failures of the new Title IX requirements, the Drake Group urges institutions to plug these gaps immediately. Indeed, we recommend that the NCAA require institutions to enact broader provisions, under their codes of conduct, specifically related to athletic departments. Under such provisions, athletes would be immediately suspended from athletic participation if credibly accused of sexual misconduct. Coaches and other athletic-department personnel would be required to report to the institution’s Title IX coordinator and the office responsible for enforcing its code of conduct any knowledge of sexual misconduct by or against athletes. Finally, if an athlete were accused of such misconduct, athletic-department involvement in the matter would cease immediately.

For more detailed information, including specific recommended procedures, see The Drake Group position paper Need for National Collegiate Athletic Governance Organization Rules Related to Athlete Sexual Misconduct and Other Physical Violence.”