Title IX continues to evolve and the future enforcement of the legislation may be somewhat uncertain due to the transition of leadership at the federal level as summarized by Marissa Pollick in her recent post. Despite this change, coaches still need to understand and follow the law and regulations in addition to working with university staff to develop and supervise Title IX initiatives.
The Title IX Mandate. Title IX provides that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The scope of Title IX expands beyond equitable participation opportunities, scholarships, and fair treatment based on gender in athletics and includes any sex-based discrimination in educational programs including sexual violence and misconduct.
Coaches must be familiar with these aspects of Title IX:
Gender Equity – Title IX does apply to promote gender equity in sports and faculty hiring. Although this legislation was passed over four decades ago, most institutions have not achieved full compliance in 13 programmatic areas. The three-prong test, developed in the 1979 regulations to Title IX, provides that an institution must meet one of the three requirements to show participation compliance: “Substantially Proportionate” to respective enrollment; or “History and Continuing Practice of Program Expansion”; or “Interests and Abilities” have been fully and effectively accommodated. The regulations also govern the equitable issuance of scholarships and identify 11 treatment areas (“laundry list”) that must be provided fairly to all student-athletes, regardless of sex. Most schools need assistance in complying with all of these requirements, and the Office for Civil Rights (“OCR”) continues to monitor and investigate each area in intercollegiate athletic programs.
Sexual Harassment and Sexual Violence – A federal policy statement from the OCR clarified that Title IX applies to the manner in which institutions deal with sexual assault. Since the OCR released its “Dear Colleague” letter in 2011, the number of Title IX cases centered on sexual harassment has escalated, and as of February 2016, 208 cases for issues of sexual violence at 167 colleges and universities are being investigated. Complaints can be filed with the OCR within 180 days of the discrimination and may be filed anonymously. Additionally, each campus is mandated to have a Title IX Office for the reporting of sexual harassment and misconduct.
LGBTQ Issues – In June 2016, the OCR issued a “Dear Colleague” letter to provide guidance on the rights of transgender students. Institutions as well as state legislatures are trying to understand this directive as underscored by the removal of NCAA Championship from North Carolina and the state of Texas challenging the federal guidelines. Many scholars are attempting to predict how court decisions may impact Title IX and institutions must monitor these developments.
The current state of Title IX can strongly impact and affect college coaches and their programs. With the pressure not just to win games but to uphold institutional values, coaches need to be aware of these best practices:
- Training – There cannot be enough said about the appropriate training for not only the head coach, but also their staff and student-athletes. While the athletics department and the Office of the Title IX Coordinator should be providing guidance, it may be necessary to request additional policy review and training for your particular staff and team. Lack of training leaves many coaching staffs unprepared to handle a Title IX issue which can occur at any point as evidenced by the numerous institutions being investigated by the OCR.
- Mandatory Reporting – Coaches must recognize that they are required to report any instance of sexual harassment or sexual violence. Each institution has a specific reporting process and should clearly communicate the protocols for filing a report. Issues of confidentiality should be articulated, and the institution should unmistakably designate which school employees are deemed “responsible employees” and obligated to report incidents of alleged sexual violence as per the OCR guidelines.
- No Investigating – Institutions are going to great lengths to ensure that athletic department employees and staff are not involved in the investigation of any Title IX claim. In order to remain neutral and allow for an unbiased review, coaches are not to conduct any type of investigation. While it is widely recognized that there is a “need to know” by a coach, the athletics department should have policy in place that preserves the investigation while safeguarding the coach.
- Contract Protections – Coaches need to review their employment agreements in light of Title IX. Specific provisions should address the fact that coaches may not be privy to any information from a Title IX complaint as it pertains to a student-athlete on their team. Likewise, if a complaint is filed against a coach, the contract should ensure that institutional policies are followed that allow for due process.
For more information please contact an attorney in our Title IX practice group.