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According to opponents of the new regulation, a Trump-era adjustment to Title IX, which was imposed as part of a comprehensive attempt to tighten due process, has made it too difficult to sanction collegiate athletes accused of sexual assault.
During sexual misconduct investigations, the US Department of Education implemented a regulation modification in 2020 that prevents institutions from applying “disciplinary, punitive, or unduly onerous” punishments. The authorities included removal from a sports team as one of the measures that might be considered unreasonable. The regulation was intended to guarantee that those accused received due process, but some coaches and others believe that the pendulum has swung too far.
When the Biden administration proposes modifications to Title IX this spring, a number of Title IX administrators and scholars intend to encourage the federal government to reexamine the regulation.
W. Scott Lewis, managing partner of TNG Consulting and a member of the Association of Title IX Administrators’ advisory board, said he has received several calls from school officials inquiring about the rule, and that he knows of coaches who have been forced to keep players on rosters against their will.
“‘Right, so say, so wait a second, I really can’t do this?’ the coaches and ADs I talked with were mostly phoning to make sure they were hearing it correctly, ‘Right, so say, so wait a second, I really can’t do this?’ ‘Even on a temporary basis?’” Lewis remarked. His organization, the Title IX Administrators, is one of several planning to petition the Department of Education.
While the regulation does not stop a school from suspending a player because of an accusation, it does state that the school must first demonstrate that the athlete constitutes an imminent danger to a person’s physical health or safety, which Lewis believes is a high bar to clear. Some coaches have criticized the provision, claiming that it takes away their ability to police code of behavior.
“I think the head coach in charge of his or her program has the obligation and responsibility to do what’s right for the individual and do what’s right for the team, and most frequently those things are aligned, but not always,” Stanford football coach David Shaw told ESPN.
Shaw claims that he makes it plain to his players what he expects of them on and off the field, and that he holds them accountable.
“The essence of it, in my opinion, comes down to head coach discretion, which I believe all head coaches should have.”
Stanford football coach David Shaw has been a vocal proponent of preventing sexual abuse among athletes. Icon Sportswire/Getty Images/Brian Rothmuller
Coaches who believe it is the proper thing to remove an accused player from a team are now being informed they cannot do so until an inquiry, leaving the coach to deal with public criticism or damaged team relations, according to opponents of the rule change.
In April 2021, a lacrosse player was banned from the squad at Syracuse for “violating team rules and expectations,” according to coach John Desko. This was in response to a complaint of domestic violence. But, according to Desko, the player, Chase Scanlan, was returned to the squad only days after the punishment. According to a lawyer for the athlete, he contacted the school to advise them of the new Title IX regulation.
Peter Schaffer, an attorney and sports agent representing Scanlan, told ESPN, “I addressed the subject with [Syracuse] and that’s what occurred.” “You must adhere to the regulations, and these children have a right to due process. You can’t sully someone’s name without going through the proper channels.”
Desko announced the suspension and reinstatement in a press conference in April 2021, but he did not respond to follow-up questions or give more explanation on the measures, and when reached by ESPN, he refused to comment on the event.
Scanlan was charged with criminal mischief and harassment by Syracuse police on May 7, 2021, after he reportedly destroyed a lady’s phone and wrapped his arms and legs around her, squeezing her until she “felt he was trying to kill [her],” according to the victim. He has entered a not guilty plea, and the university’s inquiry is still on. He is no longer a member of the lacrosse team, according to Schaffer, since he declared for the National Lacrosse League draft in August.
Syracuse’s spokeswoman refused to comment.
In August, the woman who first reported Scanlan filed a Title IX complaint against Syracuse, alleging that the institution failed to notice a pattern of aggression with Scanlan. When assessing whether to remove someone from a team, her attorney, James Aliaga, said there was a “psychological closeness” to consider.
“I’m not sure whether pundits or experts are considering what it means to a victim if a school says, ‘There may or may not be a Title IX problem here, but we’re going to allow this kid go back to normal and play lacrosse,’” he added.
Chase Scanlan, a former Syracuse lacrosse player, had been banned after a domestic abuse complaint, according to his lawyer, who claimed he phoned the school and got Scanlan restored on the squad. ZUMA Wire/AP Photos/Rich Barnes/CSM
Experts on Title IX refer to a different instance at Brown University as an illustration of the rule’s effect. Brown’s decision to ban a lacrosse player from his team and studies after a woman alleged he sexually abused her was overturned by a federal court in November 2021. According to court documents, the institution did a threat assessment and, although answering “no” to most of the questions, suspended him “because to the severe nature of the alleged behavior.”
Brown’s threat assessment team only “focused on the substance of the unverified claims” and suspended the male athlete before conducting any investigation, the judge said in her breach-of-contract complaint on Jan. 25, noting that the player had complied with a university-issued no contact order.
“Allowing the plaintiff to continue his academic and athletic activities while the disciplinary process plays out poses minimal difficulty for [Brown]. The plaintiff, on the other hand, would suffer significant consequences as a result of the suspension “Judge Mary S. McElroy of the United States District Court for the District of Columbia issued the decision.
The new regulation, according to Andrew Miltenberg, a New York attorney who has represented multiple athletes in Title IX due process cases, bans rash decisions that might jeopardize players’ careers before an accusation is thoroughly examined.
“Athletes, as we all know, have a very short window of opportunity. And if they lose a portion of that window while in college, it may be disastrous “he said “Being suspended is generally the death knell” for any athlete on scholarship or considering a professional future, he added, and any effort to repeal the rule would place players at “extremely serious danger.”
Miltenberg said he has assisted four or five Division I and Division II players facing sexual misconduct investigations be returned to their teams without having to file a lawsuit since the change took effect in August 2020.
While the Title IX regulation enables a school to withdraw an athlete from a team in an emergency, Lewis of the Title IX administrators organization believes that someone who meets the threshold would most certainly end up in prison. “If someone says, ‘Bobby struck me two weeks ago,’ then Bobby isn’t an immediate threat since she hasn’t punched anybody in two weeks,” Lewis said.
Suspending someone from a team shouldn’t be a “knee-jerk response” to a misbehavior claim, according to a Title IX coordinator at a Power Five school who talked to ESPN on the condition of anonymity. Coaches may control their teams in various ways, according to him, such as suspending someone for a connected transgression, such as a rule, curfew, or drug usage violation.
To do so, however, an athletic department would need a “robust code of conduct” that spells out the rules in writing, such as that an athlete’s mere presence in an environment with underage drinking is grounds for suspension, according to Liz Paris, partner and hearing officer director at Van Dermyden Makus investigations law firm in Sacramento, California. She also said that the agency would have to constantly enforce its rules.
“You cannot be suspended just because you have been accused of sexual assault… As a result, any further action must be based on something other than the [sexual] accusation itself “she said
Last year, documents acquired by ESPN reveal that the athletic administration at Michigan State processed two distinct accusations of sexual misconduct involving players differently.
Brenda Tracy, who has made a name for herself by visiting college locker rooms to speak to players and coaches about their roles in preventing sexual abuse, says the Title IX rule change has troubled her. Getty Images/David Madison
According to a Michigan State University police report acquired by ESPN, football coach Mel Tucker heard of a sexual assault accusation involving two of his players in February 2021 and “banned [them] indefinitely from the team…. They were no longer to be a part of any team activities.” According to the article, he informed police investigating the claim that he thought his action “was appropriate given the scenario.” Tucker was not informed of the school’s decision to initiate a Title IX inquiry until later in the report. There were no criminal charges brought. The Title IX inquiry, which was delayed due to the police investigation, determined that one player was not guilty of breaking the school’s sexual misconduct policy, while the investigation against the other player is still underway.
According to papers acquired by ESPN, police investigated a sexual assault accusation involving a basketball player from July 2021. According to the documents, Michigan State’s Title IX office was aware of the allegation but did not launch an investigation, and the player’s standing on the team was not changed. There were no criminal charges brought.
“The measures Coach Tucker took last spring were in reaction to the [former] players breaching team rules, which is at his discretion,” a Michigan State spokesman told ESPN. She also said that each allegation is processed individually “”Some circumstances may entail more than one offense, Title IX or otherwise,” she noted. MSU Athletics maintains team regulations for each sport that are presented to the players.”
However, according to a complaint filed in October by one of the football players, Michigan State stated that “restrictions on [his] football participation were the product of ‘athletic department policy,’” without detailing the policy. The complaint claimed that Michigan State violated Title IX by suspending the football player, citing a Trump-era regulation. Michigan State did not claim that their suspension was a “’emergency removal,’ nor did it give a safety and risk analysis, nor did it provide Plaintiff with a chance to appeal the decision immediately after the removal,” according to the complaint.
After the athlete, who has since gone to another Division I institution, refused to reveal his identity in court proceedings, the complaint was dropped the same month it was filed. The family is still deciding what to do next, according to the player’s attorney.
A copy of the athletic department policy or team regulations was not provided to ESPN by a Michigan State spokesman.
Brenda Tracy, a survivor advocate, educator, and speaker, said she agrees with Tucker’s decision to withdraw the players. “He made the correct decision. He made it clear to the rest of his crew that their actions mattered “she said
Tracy, who claims she was gang-raped by college football players in 1998, has made a name for herself by visiting college locker rooms to speak with athletes and coaches about their roles in preventing sexual assault. She stated she met with Tucker’s team in August and that she had attended several Stanford events with Shaw.
Tracy expressed her dissatisfaction with the rule change, particularly because more coaches have been aggressive in responding to sexual misconduct allegations. Coaches may simply decline to handle claims in the past and refer the matter to the criminal or Title IX procedures, which can take months to complete, she added.
She added, “I’ve spent all these years fostering bravery in coaches to do the right thing, and now they’re being told they can’t.”
The regulation might have a “chilling impact on other students who may have suffered sexual assault,” according to Tracey Vitchers, executive director of It’s On Us, which engages students to address campus sexual assault.
“As far as public impression goes, he’s still coming up for class, practice, and Saturday competition,” Vitchers said, adding that her group has been addressing this problem with the US Department of Education since the summer. “It’ll make [a survivor] question if it’s worth it. For other members of the college community, it creates a hazardous situation.”
When the Biden administration proposes modifications to Title IX this spring, the Association of Title IX Administrators will be among those lobbying the US Department of Education to reexamine the regulation. Getty Images/Erin Scott/Bloomberg
On the other side, according to David A. Grenardo, a professor at St. Mary’s University School of Law in San Antonio, the regulation permits coaches to utilize federal law to retain a talented player accused of sexual misbehavior on the team. “‘This is amazing,’ they’ll probably remark. I’m not going to put up with it. ‘It doesn’t have to be on me,’ says the narrator “he said
As a former college football player (he played at Rice University in the 1990s) and an attorney who formerly performed pro bono work defending domestic abuse victims, Grenardo says he sees the subject from all sides. He claimed he drafted recommended guidelines for modifying the statute and submitted them to compliance and legal officials at numerous conferences, including the Big Ten, as well as the Office for Civil Rights at the US Department of Education.
If there is supporting proof to the claimed wrongdoing, such as a sexual assault exam report, a police record, or a past instance of misconduct, his measures push for an athlete’s expulsion from the squad. While the lengthier study proceeds, he believes it would be adequate to offer some confidence against a fraudulent complaint.
The NCAA signed a letter from the American Council on Education opposing some of the 2020 Title IX amendments in June 2021. The letter didn’t mention the provision specifically, but it did encourage the Department of Education to “be conscious of the need to give flexibility to ensure schools can traverse the complexity of distinct legal obligations and institutional culture and values” when making Title IX decisions. “Campuses may best react to sexual assault complaints by employing methods that are part of, or at least accord with, their institutional student codes of conduct,” it said. Requests for further information from the NCAA were not returned.
This summer, the NCAA will impose a new rule requiring athletes moving to another school to reveal any criminal convictions or Title IX punishment as a consequence of a claim of sexual misconduct, as well as if any Title IX proceedings were completed at the time of transfer.
The National Association of Collegiate Directors of Athletics and the National Association for Athletics Compliance, two organizations whose members are affected by the regulation change, refused to comment. In an email, a representative for both organizations replied, “The NAAC Officers agreed that the story you cited is factual, but they did not think it was within their scope of sports compliance to elaborate. It’s a Title IX requirement, and they’re just obligated to obey the existing statute.”
The National Association of College and University Attorneys, which offers Title IX training, did not respond to a request for comment.
John Mastroberardino, an ESPN researcher, contributed to this article.