For Title IX and Athletics Professionals in Higher Education, One Less Moving Part

November 24, 2020

Year after year, the issue of sexual misconduct in violation of Title IX on college campuses continues to confront higher education leaders.  The topic is one on which innumerable individuals and special interest groups have strong opinions and agendas.  Athletics, commonly called the “front porch” to universities, can often be at the center of the Title IX storm.  Among other high-profile issues, there have been reports of college athletes transferring to other schools and returning to competition even after being expelled, convicted or otherwise disciplined for sexual misconduct.

In response, in April 2020, the National College Athletic Association (NCAA) expanded its sexual violence policy to require that all incoming, current and transfer college athletes disclose annually to their school whether they have been subject to an investigation, discipline through a Title IX proceeding, or a criminal conviction for sexual, interpersonal or other acts of violence. Failure to accurately and fully disclose, could result in penalties for the athlete, including a loss of athletics eligibility.

It was recently reported that in October 2020 the NCAA quietly made the controversial decision to delay implementation of this policy until the 2022-2023 academic year:

https://www.politico.com/news/2020/11/18/ncaa-sexual-violence-policy-delay-437106

This means that, until the fall of 2022, athletes might not face penalties if they do not disclose past accusations or discipline, and schools will not be required to create processes to track such misconduct.  The NCAA stated that the decision to delay implementation was based on challenges related to the pandemic and the new Title IX federal regulations that went into effect in August 2020.  Layered on top of these justifications is the speculation that President-elect Biden may at some point roll back or amend the new regulations.  Advocates for victims of campus assault have reacted to the NCAA decision with disappointment.

Though all of this, institutions of higher learning must remain steadfast in their concurrent commitments to both an environment free from sexual misconduct, and equitable, reliable processes for all.  While patience can be difficult, there is undoubtedly wisdom in allowing time to build a good process that fulfills these mutually beneficial commitments.  Colleges and universities are well advised to use the time to develop robust and equitable processes surrounding the reporting of misconduct.

If you would like guidance on Title IX, please contact Pam Connelly at pconnelly@smgglaw.com.