Abstract
Title IX of the Education Amendments of 1972 protects participants in educational programs or activities from sex discrimination. Sexual harassment is a prohibited form of sex discrimination, and sexual violence (such as sexual assault or rape) is a severe form of sexual harassment that is also prohibited. While acts of sexual violence are criminal matters, the educational institution is responsible for protecting students from acts of discrimination that interfere with the opportunity to gain the full benefit of their educational experience. As such, school administrators are responsible for prompt and effective response to acts of sexual violence against students under Title IX. In 2011, the US Department of Education Office for Civil Rights issued a Dear Colleague Letter addressing schools’ obligations to eliminate sexual violence. This article focuses on the implications this guidance document has for intercollegiate athletics administrators.
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Notes
Krebs et al. (2007), p. 2-1.
Hill and Kearl (2011), p. 11.
Id.
Hill and Kearl (2011), p. 12.
Robers et al. (2010), p. 104.
Krebs et al. (2007), p. 5-5.
Karjane et al. (2005), p. 3.
The inadequacies of the United States criminal justice system in protecting victims of sexual assault and prosecuting the perpetrators of such violence are beyond the scope of this article. A review of sexual assault reports from seven Virginia public universities in 2008 through 2010 that found none of the reported student-on-student acts of violence resulted in criminal prosecution. Bowes (2012), para 2.
See generally Crosset (2000), p. 159.
Crosset (2000), p. 159.
Knapp (2012).
Baker (2012).
Robbins (2012).
Henneberger (2012).
See S.S. v. Alexander and University of Washington 2008 as one example.
See Williams v. Bd. of Regents of Univ. Sys. of Ga. 2007.
Office for Civil Rights n.d. “The mission of the Office for Civil Rights is to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.”.
Ali (2011).
Id. “Recipients” refers to all schools that receive any federal funding for any program or activity institution-wide. The use of “schools” in this article will assume an educational institution that receives federal funding and is subject to Title IX.
Regulations 1975.
Title IX 1972 “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.” 20 U.S.C. §1681 (a).
Franklin v. Gwinnett County 1992.
Brzonkala v. VA Polytechnic Institute 1997; Soper v. Hoben 1999; Vance v. Spencer Co. Sch. Dist. 2000.
RAINN n.d. para 10.
Dear Colleague Letter: Sexual Violence, p. 1.
Sexual Harassment Guidance (1997).
See Gebser v. Lago Vista Independent School District (1998); Davis v. Monroe County Board of Education 1999.
See Gebser v. Lago Vista Independent School District (1998).
Gebser v. Lago Vista Independent School District (1998), p. 277.
Davis v. Monroe County Board of Education 1999, p. 650.
Revised Sexual Harassment Guidance (2001), p. 3.
Id.
Id.
Dear Colleague Letter: Sexual Violence 2011.
Dear Colleague Letter: Sexual Violence 2011, p. 1.
Id.
See generally Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, and Third Parties 1997 and Revised Sexual Harassment Guidance (2001).
Dear Colleague Letter: Sexual Violence 2011, p. 3.
Id.
Revised Sexual Harassment Guidance (2001). The Dear Colleague Letter: Sexual Violence is silent as to whether a school has Title IX liability for sexual assault perpetrated by a third party against a child who is participating in a non-school sponsored activity on school grounds (i.e. Penn State).
Dear Colleague Letter: Sexual Violence 2011, p. 4.
Revised Sexual Harassment Guidance (2001).
Id.
Title IX Regulations 1975, 34 C.F.R. § 106.8(a). The Association of Title IX Administrators explains the problem: Some schools and colleges have failed to designate a Coordinator. Some have multiple people fulfilling the role informally. Some have a Coordinator, but are not sure who it is. Some Coordinators don’t even know they are their institution’s Coordinator. Some Coordinators are sure they have the title, but not sure what to do with it. ATIXA n.d., para 3.
Dear Colleague Letter: Sexual Violence 2011, p. 7; see also Regulations 1975, 34 C.F.R. § 106.8(a).
Many people assume that the Senior Woman Administrator (SWA) at NCAA member institutions is the Title IX coordinator. Because the SWA is a title and not a fixed set of responsibilities across all member institutions, this may be a false assumption. The SWA is also not likely to be well educated about Title IX requirements beyond athletics, and is therefore not likely to be a good Title IX representative for the entire institution. Similarly, athletes, coaches and others may report issues to the Compliance director or staff—while these employees are well versed in NCAA rules and rules enforcement, they may not have knowledge of the legal requirements imposed by Title IX.
Dear Colleague Letter: Sexual Violence 2011, p. 7.
Id.
Id.
Dear Colleague Letter: Sexual Violence 2011, p. 18.
Dear Colleague Letter: Sexual Violence 2011, p. 4; see also Regulations 1975, 34 C.F.R. § 106.9.
Dear Colleague Letter: Sexual Violence 2011, p. 6; see also Regulations 1975, 34 C.F.R. §106.9(a).
Dear Colleague Letter: Sexual Violence 2011, p. 6.
Dear Colleague Letter: Sexual Violence 2011, p. 6. The athletics program does not have to develop and publish a notice of non-discrimination, but it may be prudent to re-publish this statement on the athletics department website and in any student-athlete or employee handbooks created by the athletics department. If the athletics department has a designated Title IX coordinator, contact information (as well as the information for the Title IX coordinator with “ultimate responsibility”) should also be included in athletics department materials.
Dear Colleague Letter: Sexual Violence 2011, p. 4, 8; see also Regulations 1975, 34 C.F.R. §106.8(b).
Dear Colleague Letter: Sexual Violence 2011, p. 7.
Dear Colleague Letter: Sexual Violence 2011, p. 9.
Id.
Dear Colleague Letter: Sexual Violence 2011, p. 8.
Dear Colleague Letter: Sexual Violence 2011, p. 4.
Dear Colleague Letter: Sexual Violence 2011, p. 10.
Dear Colleague Letter: Sexual Violence 2011, p. 16.
Dear Colleague Letter: Sexual Violence 2011, p. 17.
Dear Colleague Letter: Sexual Violence 2011, p. 15.
Dear Colleague Letter: Sexual Violence 2011, p. 12.
Dear Colleague Letter: Sexual Violence 2011, p. 4.
Dear Colleague Letter: Sexual Violence 2011, p. 12.
Id.
Dear Colleague Letter: Sexual Violence 2011, p. 16.
Dear Colleague Letter: Sexual Violence 2011, p. 12.
Id.
Id.
In the author’s opinion, the failure of the U.S. Department of Education to provide Title IX training of any kind is a major shortcoming and a barrier for schools in achieving Title IX compliance.
Dear Colleague Letter: Sexual Violence 2011, p. 5; for a complaint involving a minor, consent must be obtained from a parent or legal guardian.
Dear Colleague Letter: Sexual Violence 2011, p. 5.
Id.
Dear Colleague Letter: Sexual Violence 2011, p. 5.
Dear Colleague Letter: Sexual Violence 2011, p. 5. See also Family Educational Rights and Privacy Act 2012, 20 U.S.C. § 1232g; 34 C.F.R. Part 99.
Dear Colleague Letter: Sexual Violence 2011, p. 9.
Dear Colleague Letter: Sexual Violence 2011, p. 10; see also S.S. v. Alexander 2008.
Id. at 4, 9, and 10; see also Williams v. Board of Regents of the University System of Georgia 2007. Ideally, law enforcement personnel investigating criminal charges of sexual assault or violence will share information and cooperate with school officials investigating Title IX sexual harassment or sexual violence claims. Dear Colleague Letter: Sexual Violence 2011, p. 7. The Dear Colleague Letter: Sexual Violence guidance recommends entering into a Memorandum of Understanding (MOU) with the local police department. Dear Colleague Letter: Sexual Violence 2011, p. 10.
Dear Colleague Letter: Sexual Violence 2011, p. 11.
Id.
Dear Colleague Letter: Sexual Violence 2011, p. 9. See Williams v. Board of Regents of the University System of Georgia 2007; Simpson v. University of Colorado Boulder 2007; and S.S. v. Alexander 2008. In each of these cases, the harassers were either not criminally prosecuted or were not convicted, yet the institutions were liable under Title IX.
Dear Colleague Letter: Sexual Violence 2011, p. 7.
Id.
Id.
Dear Colleague Letter: Sexual Violence 2011, p. 8.
Id.
Id. In S.S. v. Alexander 2008, the plaintiff was discouraged from filing a formal complaint and was forced into mediation with the student-athlete who she claimed had raped her.
Dear Colleague Letter: Sexual Violence 2011, p. 9. For example, university counsel should not serve as Title IX coordinator because counsel’s duty to protect the university may conflict with the requirement that the Title IX coordinator be impartial. Some critics have argued that an employee of the institution can never be impartial.
Dear Colleague Letter: Sexual Violence 2011, p. 11.
Dear Colleague Letter: Sexual Violence 2011, p. 9. See also Sexual Harassment Guidance 2001.
Dear Colleague Letter: Sexual Violence 2011, p. 12.
Dear Colleague Letter: Sexual Violence 2011, p. 11. This type of direct confrontation could escalate a hostile environment.
Dear Colleague Letter: Sexual Violence 2011, p. 13. Disclosure to the complainant is limited by FERPA to the name of the alleged harasser, the violation that was found to have been committed, and sanctions imposed against the harasser by the school. The Clery Act also requires both the accuser and the accused be informed of the outcome of disciplinary proceedings involving a sex offense. 34. C.F. R. §99.33(c).
Dear Colleague Letter: Sexual Violence 2011, p. 12.
Dear Colleague Letter: Sexual Violence 2011, p. 4.
Dear Colleague Letter: Sexual Violence 2011, p. 15.
See S.S. v. Alexander 2008.
Dear Colleague Letter: Sexual Violence 2011, p. 15.
Dear Colleague Letter: Sexual Violence 2011, p. 16; a woman who accused 6 football players of gang rape was called “a queen of the slums with a mattress tied to her back” by a university administrator. Cosentino (2012), para 10.
Dear Colleague Letter: Sexual Violence 2011, p. 5.
Cosentino (2012), para 3.
Dear Colleague Letter: Sexual Violence 2011, p. 16.
Dear Colleague Letter: Sexual Violence 2011, p. 5.
Dear Colleague Letter: Sexual Violence 2011, p. 1; the victim in the Notre Dame football case committed suicide 10 days after reporting the alleged rape. Cosentino (2012), para 1.
Dear Colleague Letter: Sexual Violence 2011, p. 15, 16.
Dear Colleague Letter: Sexual Violence 2011, p. 15.
Dear Colleague Letter: Sexual Violence 2011, p. 2, 15.
Dear Colleague Letter: Sexual Violence 2011, p. 15.
Dear Colleague Letter: Sexual Violence 2011, p. 15, 17.
Dear Colleague Letter: Sexual Violence 2011, p. 18.
Dear Colleague Letter: Sexual Violence 2011, p. 15.
Dear Colleague Letter: Sexual Violence 2011, p. 15, 17.
Dear Colleague Letter: Sexual Violence 2011, p. 15, 17.
Dear Colleague Letter: Sexual Violence 2011, p. 15.
Revised Sexual Harassment Guidance (2001).
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Osborne, B. Eliminating sexual violence in schools: implications for athletics administrators in the United States. Int Sports Law J 13, 9–17 (2013). https://doi.org/10.1007/s40318-013-0002-8
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DOI: https://doi.org/10.1007/s40318-013-0002-8