Author: legdx

March 23, 2023

NIL is an acronym for Name, Image, and Likeness and is used to refer to an athlete’s ability to profit off their celebrity. The NCAA previously had a long-standing rule against student athletes receiving NIL profits, instead limiting athletes to stipends and scholarships in order to maintain their amateur status. However, that changed in June 2021 when the Supreme Court held that the NCAA could not legally prevent college athletes from receiving any education-related payments.

After the Court’s ruling, the NCAA kept in place two major restrictions: students cannot play for pay and quid pro quo arrangements are not allowed, but it did not establish overall rules to govern NIL policies. Then in 2022, the NCAA Division I Committee on Infractions established a standard of review to determine whether a member school violates NIL rules. The Committee presumes the “quack like a duck” metaphor; if available information supports a violation, the Committee presumes that a violation has occurred. To overcome this presumption, the school must “clearly demonstrate” that all associated conduct complied with NCAA rules and interim NIL policies.

In a notable case since the new NIL rules, the NCAA alleged that the University of Miami women’s basketball team head coach violated recruitment rules when she did not consult with the school’s compliance department regarding her involvement with a booster; she was directly involved with arranging for prospects and that booster to meet in-person, off-campus, before the recruits had signed with the school; and the booster provided the prospects a meal. The coach was unable to clearly refute the allegations, and the Division I Committee on Infractions allowed the matter to be settled with a negotiated resolution. Because boosters are now heavily involved with prospects and student-athletes, it is important to keep an eye on similar situations that may result in impermissible booster conduct.  

Institutions may also be confused about whether the whether NIL deals cause violations of Title IX. One primary area of concern centers on disparities in the number of NIL deals made and the dollar amount earned among male and female athletes. For instance, of the top 10 NIL earners for 2022, seven were male football players, two male basketball players, and one female gymnast. The number one player’s NIL valuation was $7.5M; two, $3.6M; three and four, $3.5M; five, $3.2M; six, $2.7M is the female; seven, $2.4M; eight, $1.8M; nine, $1.7M; and ten $1.6M. Simply put, males earned more than 10 times what females earned: $28.8M to males versus to $2.7M females.  

Though these amounts earned are rare, the bigger deals clearly favor men’s sports and make it appear that female athletes don’t have the same opportunities as males. For this reason, in January, The Drake Group, a college athletics advocacy group, requested the U.S. Department of Education (DOE) and the Office for Civil Rights (OCR) to examine the relationship between NIL deals and Title IX and to provide guidance on how to determine whether an NIL deal implicates Title IX. 

ICS provides a wide range of Title IX consulting services, including in athletics. As this NIL space continues to evolve, contact us if you’d like assistance with your institution’s Title IX compliance.

March 16, 2023

A federal appeals court in California recently upheld the expulsion of two students for racist Instagram posts. In Chen v. Albany Unified School District, the Court examined the extent of free speech protections for off-campus speech following the consequential 2021 Supreme Court decision in Mahanoy Area School District v. B.L. In Chen, one student plaintiff created a private Instagram account and used the account to post racist content about his classmates including references to the Ku Klux Klan, lynching, and racist language. While the account was private, thirteen individuals were allowed to follow the account. The student also encouraged others to comment on his posts and used racist slurs in the comments. When other students saw the posts, several students stated they felt “devastated,” “scared,” and school counselors attested that the impact on the student body was “significant.” School administrators suspended the students for five days, then subsequently decided to expel the several of the students involved.

After this determination, the student plaintiffs sued the District, alleging that the District’s disciplinary actions against them violated their First Amendment rights. Mainly, the plaintiffs argued that their speech was not “susceptible to regulation because it occurred off campus.” On appeal, the Court revisited the off-campus speech framework under Mahanoy. Under Mahanoy, SCOTUS stated that public schools may regulate off-campus speech but possess less authority in comparison to on-campus speech. The Court also utilized a three-factor test from McNeil v. Sherwood Sch. Dist. (a Ninth Circuit Case) to determine whether the speech has a “sufficient nexus” to the school to permit regulation and discipline. These factors include: “1) the degree and likelihood of harm to the school caused or augured by the speech, 2) whether it was reasonably foreseeable that the speech would reach and impact the school, and 3) the relation between the content and context of the speech and the school.”

In this case, the Court ultimately reasoned that these factors, taken as a whole, warranted the disciplinary action that the students received. First, there was sufficient evidence that the degree of harm caused by the posts was significant. Students felt targeted, bullied, and that their academic performance suffered. Second, because the images were screen-shotted, shared (via Instagram) or via text, it was “plainly foreseeable” that the images would be shared with the school community. It is notable that the plaintiff’s intention to make his account private was not discussed in the analysis. As to the third factor, the Court relied on Mahanoy’s holding that authorizes schools to discipline student’s speech in order to protect students from severe bullying or harassment, even if the speech occurs off-campus. Thinking in the alternative, the Court reasoned that had the school not disciplined the students there could have been additional harm to the school community.  In reaching this conclusion, the Court also noted key differences between Manahoy and Chen. In Mahanoy, the plaintiff’s Snapchat picture was not aimed at a specific person and did not depict threats of violence. The Court also observed that in Mahanoy there was minimal disruption to the educational environment, whereas in Chen there was significant harm to the student body and the educational environment. Overall, given the circumstances in this case, the Court concluded that all three factors weighed in favor of the District.

As one of the first decisions to apply Mahanoy, this decision reiterates the importance of evaluating the totality of the circumstances when disciplining students for speech. Additionally, the Court’s analysis emphasizes the careful decision-making that school administrators must make when a student’s speech contains threats of violence to other students, even if such speech occurs off-campus. As this case law develops, we encourage an active review of your policies and procedures concerning student discipline for on/off-campus speech to ensure the process encompasses relevant risk assessments while ensuring students’ Due Process rights remain intact.

March 9, 2023

The Department of Education’s Office for Civil Rights released three new resources that will help students, parents, athletics staff, and administrators evaluate whether a school is providing equal athletic opportunities regardless of sex.  

In accordance with Title IX of the Education Amendments of 1972, public elementary and secondary schools as well as colleges and universities who receive federal funding have a responsibility to provide these equal athletic opportunities regardless of sex in a few key areas including: 

• • • benefits, opportunities and treatment;
    • meeting students’ interests and athletic abilities; and 
    • (for Higher Education specifically) scholarships and financial assistance.

These newly released resources found here provide examples of how to evaluate your school’s athletic programs through Title IX as well as guidance on what parents, students, or others can do if they feel like a school is not offering equal athletic opportunities under Title IX in its athletic programs. 

These new resources are useful tools for Title IX Coordinators at the K-12 and Higher Education levels. Use them to evaluate and measure your athletic programs for Title IX compliance. Remember, because equal opportunities in athletics fall under Title IX, your school needs a procedure to respond to complaints of this nature. Reports of athletics equity do not require a response under the prescriptive 2020 Title IX regulations formal grievance process.  Nonetheless, these reports fall under Title IX and require a response by your school.  Your policies and procedures should clearly outline the process your school will follow in these matters for your students and employees that includes the Title IX Coordinator.  Consider (1) is it clear how to report these grievances and to whom; and (2) what process your school or institution will follow in its response and outcome? 

Title IX Coordinators should be proactive in connecting with athletics administrators now to make sure your school has a good plan for evaluating your compliance and responding to complaints that may present in athletics equity.

If you need assistance with Title IX Athletics compliance, ICS is here. For more information, you can also visit OCR’s Title IX Athletics overview page found here.

 

February 16, 2023

With the requirements under the 2020 Title IX Regulations, a good policy is critical to your compliance efforts. We know through the Office for Civil Rights’ published resolution agreements and corrective action plans for institutions who have undergone investigation by the Department, process is a key piece. Policies are reviewed by the Department to determine whether a district or institution is in compliance.

 

However, a good policy is about more than compliance. The ICS team knows through real, on-the-ground experience serving as Title IX Coordinators, Investigators, Decision-Makers, Advisors, and consultants, that a policy has to be WORKABLE. The policy must be easily understood for parties and witnesses, but also workable for members of the Title IX team.

 

While currently serving as an investigator in several Title IX matters, I can attest that a good policy is critical to my confidence level. Working with a confusing or voluminous policy requires that I have multiple meetings with the Title IX Coordinator, taking up precious time. For example, I recently spent a good amount of time trying to figure out how I was supposed to calculate “days” for review periods in an investigation I was handling. A simple designation as to whether business or calendar days are used along with a definition would have saved me time and a phone call to the Title IX Coordinator. 

 

We have run into other, more serious, problems with policies as well. For example, if a policy is silent about the burden of proof, how will a decision-maker know whether a Respondent is responsible for what is being alleged? Among the key clauses in a good policy, there should be a clear outline of the procedure, accurate definitions based upon the requirements outlined in the Title IX regulations, information about the rights and responsibilities of parties and the roles of those on the Title IX team, and a clear burden of proof.

 

A good policy is simple and specific. It should be easy to follow but answer as many questions as possible. It should also be easily recited by the members of the Title IX team. A helpful litmus test to know whether you have a good policy is to ask the members of your team to explain the policy to you (and if they have a flowchart, they should get bonus points!). If they cannot do it in a relatively simple way, then maybe it is time to go back to the drawing board. 

 

Blog by ICS Attorney and Legal Analyst Amy Buck. Her work since joining the ICS team last spring has included applying many different district and university policies through her numerous external investigations.

 

If you are not sure your policy is the best that it can be, ICS can help by reviewing or drafting a policy for you!  Contact us at info@icslawyer.com.

February 9, 2023

The world of Title IX is full of policies, procedures, and (ever changing) regulations. I know sometimes it can feel like we are just doing our best to hold all the layers up at once while we try to manage the compliance components of our work. Who knew we needed to learn to juggle so quickly? On top of that, Title IX is not just the work of compliance; it is the work of people. Specifically, it is the work of people who may be hurting, confused, shocked, or experiencing varying other levels of mental health and traumatic reactions to their experiences with the Title IX incident and/or the Title IX process. So, how do we balance the work of compliance and the work of people?

First, we must acknowledge that accomplishing one does not jeopardize the other. We can be excellent in the work of compliance and excellent in the work of caring for people at the same time. Small decisions can be both people- and compliance-focused, like the time of day when you send an email, the efforts made to deliver certain updates in person when possible, or the space for questions at the end of a meeting. Choose small things when you can to accomplish both.

Second, we do not have to be trained mental health professionals to be trauma-informed in our Title IX work. Certain emotional, cognitive, and even physical reactions in the room can be directly related to trauma. Examples of trauma reactions could include:

• • • Difficulty concentrating or making a decision
    • Anger, sadness, numbness
    • Fatigue
    • Health concerns such as headaches or digestive problems
    • Sense of isolation (that no one understands)
    • Forgetfulness
    • Anxiety, fear

Filter the report through the lens of the person in front of you. Their reactions are telling you something you need to know. When we see the person and not just the report, we have a better chance of picking up on that message. Trust your gut and your instincts – person to person.

Lastly, treat yourself like a person too. You have a lot on your plate. You are trying to take care of people, policies, compliance AND your own lives outside of all that. It will be easier to achieve balance in your work when you build those habits for yourself in other areas of your life. I know, self-care is hard to come by. Think quality over quantity. What could you do for 5 minutes today that would restore something you are needing in your life? Once you think of it, actually do it!

This is hard work. I, for one, am thankful that we are all in this together. Take care of yourself today – you deserve it!

Blog by ICS’ newest team member, Case Manager and Consultant Brittany Gates. Before joining ICS, Brittany was most recently the Title IX Coordinator at a small private university for the past three years and brings to ICS a wealth of on-the-ground knowledge from serving in this role.