Upholding Title IX Principles in Collegiate Athletics

Written with Debbie Osgood [1]

Black and White Soccer Ball on Green Grass Land during Daytime

Title IX of the Educational Amendments of 1972 prohibits sex discrimination, including sexual harassment and sexual violence, in educational institutions that receive federal financial assistance.  Complementing Title IX at the federal level are the Clery Act and the Violence Against Women Act, both of which seek to protect individuals against discriminatory and violent behavior on the basis of sex.  Different state statutes and institutional policies offer further safeguards within the higher education landscape, and now, new NCAA regulations have been added to the fold for those who are members of the intercollegiate sports’ governing body.  Given our backgrounds at the U.S. Department of Education and the NCAA, the values of gender equity and intercollegiate sports resonate strongly with us and with the other attorneys in the Education Group at Hogan Marren Babbo & Rose, and we would thus welcome the opportunity to assist in furthering those values within your campus

There is no doubt that Title IX has been responsible for ushering in a new era of educational benefits to college campuses across the country, particularly in the area of athletics, where female participation has skyrocketed over the last few decades.  By the same token, Title IX has pushed colleges and universities to take greater responsibility in responding to reports of sexual harassment and violence incidents on campus, including within the athletics department.  Indeed, such incidents often tend to get magnified when athletics is involved, given the visibility of student-athletes and athletics personnel, and the high stakes that usually accompany such enterprise.  One example is the recent Baylor University sexual assault scandal that led to the ouster or resignation of the University President, Athletics Director, Head Football Coach, Title IX Coordinator, and others, as well as to multiple lawsuits and unfavorable PR coverage.  This episode  illustrates the magnitude of the adverse effects that such incidents can bring upon an institution and, more importantly, the constituencies that it serves.

It is for that reason, as well as the alignment of Title IX principles with NCAA values, that the collegiate sports authority – although not itself directly covered by Title IX – has taken on a more active approach towards better positioning its 1100-plus members to effectively address sexual harassment and violence on campus.  The NCAA has not been shy to use its bully pulpit to seek change on issues that touch upon its mission, such as confederate flag sponsorship, Native American inspired mascots, and transgender restroom usage, and this area is no exception.  Since 2012, the NCAA has spearheaded or sponsored commissions, task forces, summits, and the production of a series of materials and resources, all designed to foster the appropriate treatment of sexual harassment and violence within athletics departments and the broader campus community.[2]

The latest articulation of this approach is the NCAA Board of Governors Policy on Campus Violence, adopted earlier this month as a reaffirmation of its commitment to advance a positive athletics culture that revolves around respect and empathy for all.[3]  Under the Policy, each University President, Director of Athletics and Title IX Coordinator must, on or before May 15, 2018 (and each year thereafter) certify that:

  • The athletics department is knowledgeable about and compliant with campus policies and processes regarding sexual violence prevention,
  • Those policies and processes, and the name and contact information for the Title IX Coordinator, are available within the athletics department, and
  • All student-athletes, coaches and staff have been trained on sexual violence prevention.

While the Policy is silent on penalties or other implications of non-compliance, the failure to abide by this guidance, at the very least, increases the likelihood of running afoul of the law, with all attendant consequences thereto.

And, even though some commentators have criticized the new NCAA rules as simply reiterating existing federal requirements, it is clear that the new rules seek to encourage college athletics to take a more prominent role in preventing and addressing sexual violence.  In announcing its new Policy, the NCAA stated, as one overarching principle for the new rules, that intercollegiate athletics programs should “utilize their platform to serve as leaders on campus through engagement in and collaboration on efforts to support campus-wide sexual violence prevention initiatives”.

It is clear that the NCAA is sending a strong message that, given their unique role on school campuses, athletics departments must not only make sure their “houses” are clean, but also must help keep the entire university neighborhood clean  To effectively discharge these new NCAA obligations, then, it is incumbent upon athletics departments to establish the “tone at the top”, the level of inter-campus collaboration, and the availability of resources necessary to ensure compliance.  With extensive experience and expertise in both collegiate athletics and sexual harassment and violence prevention, the Education Group at Hogan Marren Babbo & Rose is well positioned to serve as one such resource to colleges and universities, and their athletics departments.  In this constantly changing legal environment, our Group offers a plethora of effective and targeted services, including the performance of compliance assessments and audits of institution/department sexual violence programs, the development and revision of institution/department policies and procedures consistent with governing law and regulation, and the provision of education and training to all applicable constituencies on campus.

[1] Debbie Osgood and Jay Rosselló are partners in the law firm of Hogan Marren Babbo & Rose (“HMBR”).  Ms. Osgood previously served as National Enforcement Director at the U.S. Department of Education, Office for Civil Rights, and Mr. Rosselló as Director of Legal Affairs and Enterprise Risk, Ethics & Compliance at the National Collegiate Athletic Association.  HMBR’s roster also includes the Department’s former General Counsel, Charlie Rose, and former Deputy General Counsel for Postsecondary Education and Regulatory Services, Dennis Cariello.

[2] See http://www.ncaa.org/sport-science-institute/sexual-assault-and-interpersonal-violence, including the sexual violence prevention tool kit contained therein.

[3] See http://www.ncaa.org/sport-science-institute/topics/ncaa-board-governors-policy-campus-sexual-violence.

 

Out of Bounds? The Reach of NCAA Jurisdiction

The University of Louisville Cardinals and the University of North Carolina Tar Heels – two of the preeminent collegiate basketball programs in this country.  They have collectively appeared in thirty NCAA Tournament Final Fours, hoisting the championship trophy a total of ten times.  Yet, both programs are currently embroiled in high-profile scandals that bear upon issues of the extent of institutional accountability and the reach of NCAA jurisdiction.

Indeed, recently, the NCAA handed down sanctions against the University of Louisville basketball program in response to a staff member’s arrangement of lascivious parties for recruits (e.g. arranging for prostitutes to engage in sexual activities with these teenage boys).  At the University of North Carolina, the charges are of an academic nature – for almost two decades, a number of university student-athletes were enrolled and participated in sham classes in the African and Afro-American Studies Department.

It is hard to argue that one set of infractions is worthy of more leniency than the other.  Both sexual exploitation and academic fraud run counter to the very foundations of the NCAA itself – student well-being and academic integrity – not to mention basic notions of moral decency.  The institutions themselves, moreover, have admitted to the occurrence of the underlying conduct; and yet, they both vehemently refuse to accept the NCAA’s rulings.

The University of Louisville, which sought to avoid the NCAA’s wrath by self-imposing a one-year men’s basketball postseason ban in the wake of the scandalous allegations, railed against the sanctions levied by the NCAA (including suspension of head coach, loss of scholarships and removal of wins) as being “unjust [and] inconceivable”.  Meanwhile, UNC, which, throughout the six-year long investigation, has consistently challenged the NCAA’s involvement in the matter, maintains that the issue at hand is an academic one, outside of the purview of collegiate sports’ governing body.

Instead of accepting blame and showing contrition, then, both institutions have displayed outright defiance at what they view as jurisdictional overreach, a strategy not likely to serve either of them well going forward (just ask Penn State and Syracuse, respectively).  To be sure, the NCAA – charged with policing more than a thousand athletics programs, with limited resources and no subpoena power – faces some inherent challenges in enforcing its rules.  However, when the charges are undisputed and the same go to the foundational principles of collegiate athletics, there should be little resistance to corrective and disciplinary action.

This is even more the case when, as here, institutions voluntary join the organization and commit to abide by and uphold its governing precepts.  North Carolina’s claim that its bogus courses were not limited to student-athletes does not justify exclusion of NCAA jurisdiction.  The fact that another entity – in UNC’s case, its accreditor (the Southern Association of Colleges and Schools) – already issued penalties for the conduct at issue does not render the institution immune from further prosecution by overlapping authorities.  While the NCAA is certainly the governing body of intercollegiate athletics, its mission and countless regulations are replete with criteria and other references related to academics and well-being – without them, the “student-athlete” paradigm would, in effect, fall by the wayside.

Similarly, Louisville’s assessment of the NCAA as lacking power and of its ruling as a “very large mistake” carries little weight.  Institutions and their respective athletics departments will not be incentivized to fully ensure compliance until the sanctions levied properly correspond to the particular transgressions.  Furthermore, the courts, in the absence of blatant due process violations, have typically exhibited a fair amount of deference towards the NCAA when it comes to academic, amateurism and internal disciplinary matters (akin to the discretion afforded its own member schools on faculty tenure and student code matters, for example).  To suggest that the NCAA has no role in either of these two cases, then, is not only legally unsound, but, more importantly, diverts attention away from the underlying wrongdoing and effective approaches to avoiding its future recurrence.

While UNC’s appeal later this month and that of Louisville thereafter stand to shed further light on the full ramifications of these types of incidents, some implications for NCAA colleges and universities are already clear.  First, it behooves schools’ athletics directors, general counsel and presidents (on whom ultimate responsibility for athletics lies), to design, implement and maintain a comprehensive and robust system of compliance and internal controls.  To the extent infractions nonetheless arise, it is in these officials’ institutional interest to timely self-report and self-impose meaningful restrictions (a scholarship here, or a postseason ban there, will not suffice in these kind of cases) to gain the good graces of the NCAA and restore their constituencies’ confidence in the school and its athletics department.  To do otherwise is likely to be nothing more than a fool’s errand, as the NCAA will surely continue to dig in its heels (no pun intended) and defend its turf amidst mounting assaults on its foundational principles.