Title IX in Athletics and Addressing Campus Issues

Explore the requirements and non-requirements of Title IX in athletics, including the three-part test and 13 program components. Discuss recent trends in reporting, funding disparities, and pressing campus issues within the Northern California Title IX Administrators Network. Delve into the impact of Title IX on intercollegiate sports and the equitable treatment of male and female athletes.

• Title IX
• Athletics
• Campus Issues
• Gender Equity
• Northern California

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1. NORTHERN CALIFORNIA TITLE IX ADMINISTRATORS NETWORK Elizabeth Trayner, Ed. D., Title IX Coordinator, University of the Pacific (She, her, Hers) November 29, 2021

2. DISCUSSION ITEMS How are the case loads in your offices? Any trends you are seeing? Are you seeing an increase or decrease in reporting? Any pressing issues on your campus you d like to discuss with the group?

3. TITLE IX AND ATHLETICS

4. WHATS REQUIRED Provide equal opportunities for female and male students to become intercollegiate athletes (Three-part test or Prongs) Provide equitable treatment of participants in the overall women s program as compared to the overall men s program (13 program components or Laundry List)

5. WHATS NOT REQUIRED Provide the same funding to the overall women s and men s programs Provide the same funding to men s and women s teams for the same sport Provide specific benefits to the teams Offer the same number of teams for men and women Offer the same sports for men and women Provide the same benefits to men s and women s teams in the same sport Compete at a specific level

6. THREE-PART TEST Proportionality Program Expansion Full Accommodation TWO-PART TEST Equivalent levels of competition Upgrade competitive levels

7. 13 PROGRAM COMPONENTS Accommodation of interests and abilities (Three-part Test and Two-Part Test) Athletic Scholarships Equipment and supplies Scheduling of games and practice times Travel and per diem allowances Tutoring Coaching Locker rooms, practices, and competitive facilities Medical and training facilities and services Housing and dining facilities and services Publicity Support services Recruitment of student athletes

8. NCAA

9. SEXUAL VIOLENCE POLICY Changes become effective in the 2022-2023 academic year On an annual basis collect info from all incoming, current, and transfer student athletes regarding whether their conduct resulted in an investigation, discipline through a Title IX proceeding, or a criminal conviction for sexual, interpersonal, or other acts of violence. Take reasonable steps to confirm the information provided by student- athletes and provide information to other member institutions that are attempting to confirm same Implement policies to gather and conduct-related information from former schools attended by recruited prospects and transfer student-athletes

10. PENALTIES Failure to make a full and accurate disclosure could result in penalties, including loss of eligibility to participate in athletics as determined by the member institution. Failure to have a written policy in place to gather information from recruited incoming athletes or transfer athletes and to actually gather the information consistent with that procedure could result in penalties. If a school is not able to attest their compliance with the above requirements, it will be prohibited from hosting any NCAA championship competitions for the next applicable academic year.

11. DETAILS TO CONSIDER When will your campus be collecting this information (e.g. after an official visit or after recruitment?) Will this information be collected on an on-going basis or at a set time each year? How will your campus verify the information received and its accuracy? What happens if a student was found responsible? Is your campus planning to include incidents of sexual harassment in addition to sexual assault? Is your campus planning to be in full compliance by the 2022-2023 school year?

12. CASE UPDATES

13. TAYLOR ANDERS, ET AL V. CSU FRESNO ET AL (2021) October 2020 FSU announces it will no longer sponsor womens lacrosse (among others) Lacrosse team brought a class action suit in February 2021 alleging the following claims under T9: Effective accommodation Equal treatment Financial aid Almost brought preliminary injunction barring FSU from eliminating their team while the action was pending (court did not bar but did require equal treatment)

14. TAYLOR ANDERS, ET AL V. CSU FRESNO ET AL (2021) Complaint was amended twice but ultimately FSU files motion to dismiss for failure to state a claim Failed to state financial aid claim because they could not show an imbalance of cumulative financial received between males and females Plaintiffs also could not show that any imbalance was based on discrimination Effective accommodation and equal treatment claims are still to be litigated

15. DOE V. TEXAS A&M UNIVERSITY Doe is seeking TRO to enjoin the University from expelling him after he was found responsible for sexual misconduct Argues T9 hearing resulted in erroneous outcome and involved selective enforcement Doe alleges the hearing process deprived him of an adequate opportunity to conduct discovery and to provide accurate evidence Denied access to original interview materials Hearing was conducted on the basis of a university representative s summary of 2 witness statements (himself and complainant) Denied full opportunity to correct his own statement or test the accuracy of other statements Prevented from offering evidence related to the criminal complaint

16. DOE V. TEXAS A&M UNIVERSITY Test for TRO: 1. Substantial likelihood of success on the merits 2. Substantial threat that the movant will suffer irreparable injury if injunction is denied 3. The threatened injury outweighs any damage that the injunction may cause the defendant 4. The injunction will not disserve the public 1. Court agrees it is likely Doe would prevail on his erroneous outcome/selective enforcement claims 2. Court agrees expulsion would result in immediate and long term irreparable harm

17. DOE V. TEXAS A&M UNIVERSITY 3. University argued it had an interest in safeguarding the University population and its own integrity. Court disagrees that this is enough because Doe was attending classes entirely remote 4. It is in the public interest to punish those who perpetrate sexual assaults and, consequently, to deter such acts and protect others. At the same time, it is in the public interest to ensure that life-altering judgments are not inflicted wantonly and irretrievably when not properly supported. TRO granted.

18. CASE STUDIES

19. KINK CULTURE Alex and Jo have been dating for a few months. Jo regularly initiates sex by rubbing her butt against Alex s genitals while they are spooning in bed. Over the last few weeks, Alex and Jo, have begun to experiment with their sex life by acting out role plays and fantasies. One role play that they discussed and negotiated, involved Alex breaking into Jo s room and penetrating her while she said no and pretended to fight Alex off. They did act out the role play one time. Alex and Jo both enjoyed the thrill of it. A few nights ago while in bed, Jo began rubbing her butt against Alex s genitals. Alex performed oral sex on Jo and then went to penetrate her. Jo said no and tried to push Alex off but Alex thought she was role playing again and held her down and penetrated her until he orgasmed. They both went to sleep but the next morning Jo contacted the Title IX Coordinator saying her partner raped her. What would you do as the Title IX Coordinator?

20. FACULTY SEXUAL HARASSMENT A female faculty member in a predominantly male department comes to you and begins to share some of her experiences over the past 6 years. It starts with her interview process where she was asked if she was planning on having children because it would negatively impact the rest of the department and their teaching loads. She then describes a time when she was invited to the department chair s home which she thought would be having dinner. Instead she found herself in an apron serving everyone and washing the dishes after the fact. She continues to share additional experiences and the impact it has had on her physical and mental health. What steps would you take?

21. DOUBLE JEOPARDY? Jordan accuses Xander of sexually assaulting her based on her incapacity to consent due to alcohol consumption on August 1, 2021 in her on campus residence hall. An investigation and hearing takes place and Xander is found not responsible. No appeals are filed and the case is considered closed on November 1, 2021. On November 8, 2021, Jordan learns that Xander videoed the encounter and shared the video with several of his fraternity brothers telling them how hot this video is. Jordan is good friends with one of his brothers so he tells Jordan about the video. The video shows that Jordan was stumbling as she comes into the room and Xander has to help her to the bed. She is slurring her speech and passed out at least 3 times during the sexual encounter. It also shows the entire sexual encounter between the two of them. On November 9, 2021, Jordan shows up in the Title IX Coordinator s office to discuss options. What, if anything, can be done?

22. EMPLOYEE RIGHTS The Title IX Coordinator sends out a notice to an employee that an investigation will be taking place. The notice of investigation outlines all the required information as outlined within the 2020 regulations. The employee responds to the Title IX Coordinator requesting a Lybarger or Spielbauer warning prior to participating in an interview. This is not a typical part of your process. A typical Lybarger warning states: You are advised that under normal circumstances you have the right to remain silent and to not incriminate yourself, but this is an administrative investigation and, as such, you are ordered and required to give a statement and answer all questions truthfully. What would be your approach?

23. THANK YOU These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your attorney. All attendees at the November 29, 2021 virtual meeting of the Northern California Title IX Administrators Network are hereby granted permission to post a copy of these materials to their institution s website solely for purposes of compliance with 34 CFR 106.45(b)(10)(i)(D). These materials are not intended to be used by anyone for their own training purposes. Use of this material for proprietary reasons is strictly prohibited.