Title IX Compliance Process Allows for Mistakes

Reported in collaboration with Loyola’s Investigative and Public affairs capstone.

In the wake of the #MeToo movement, massive scandals at high major universities like Baylor and Michigan State, and even a convicted rapist playing golf at Loyola, there seem to be problems slipping through the cracks of the Title IX compliance process.

Title IX was signed into law by President Richard Nixon in 1972. By 1978, six times as many high school girls were participating in athletics. During the 2016-17 academic year, 217,621 women competed in collegiate athletics, according to the NCAA demographics database.

The law prohibits “discrimination on the basis of sex in any federally funded education program or activity.” Because nearly every college and university accepts federal funding, collegiate athletics must provide equal opportunities for men and women to participate in athletics.

Women have been given more opportunity to compete in athletics since Title IX was established. 44 percent of college athletes were women in 2017, compared to 34 percent in 1989.

The relationship with collegiate athletics and Title IX is what most people think of when they hear about the law, according to Daniel Rousseau, a lawyer who specializes in internal investigations and compliance.
“Title IX, generally what the public thinks of it, refers to athletics at colleges,” Rousseau said. “That’s where Title IX first made a name for itself. It required equal funding in participation for males and females in college athletics.”

The law has succeeded in giving women the opportunity to play sports. However, that doesn’t mean it’s strictly followed or that there aren’t problems with the law today.

The law mandates male and female athletes receive athletics scholarship dollars proportional to their participation.
Former president of Baylor University, Ken Starr, appeared at a congressional hearing in 2014 to discuss the disparity in scholarship money between Baylor’s male and female athletes. Baylor had a 14-point gap between female participation and female aid money. Women made up 58 percent of the athletes at Baylor, but received just 44 percent of the scholarship money.

The Department of Education’s Office of Civil Rights wrote in 1998 that a disparity of more than one percent between women participating in sports and financial aid money “is in violation of the substantially proportionate requirement of Title IX.”
However, according to a Vice Sports analysis, 30 of 65 schools in Power 5 conferences — Big 10, SEC, ACC, PAC 12 and Big 12 — have a disparity of more than two percent.

Loyola doesn’t have an issue with financial aid disparity in the athletics department. Women make up 51 percent of the student athletes at Loyola and receive 59 percent of the student aid, according to DOE’s Equity in Athletics Data Analysis.

The issue Loyola does have is the disparity between the number of women on campus and number of women in the Norville Intercollegiate Athletic Center, according to Keith Lambrecht, the Loyola athletics NCAA faculty representative. 66 percent of Loyola students are women, according to U.S. News and World Report, but just 51 percent of student athletes are women.

“I’m guessing we don’t meet the threshold for enough women’s sports, based on us having about 70 percent women here,” Lambrecht said. “But do any women feel like they don’t have enough opportunity? If you talked to our women on campus, they feel they have opportunities.”

Disparity in numbers isn’t the only issue facing Title IX’s success. Title IX prohibits universities from discriminating in any way based on sex, DOE and Supreme Court decisions have broadened this to mean sexual assault and sexual harassment on campuses.

“Basically, there is federal guidance that indicate under Title IX, any educational institution that receives federal funding, this includes high schools, colleges, all the way into elementary schools, any school that receives federal funding, they are obligated by law to investigate an allegation into sexual assault,” Rousseau said.

The reasoning behind the broadening of the law is to allow women the opportunity to not only freely get an education but get an education safely and without fear of harm, according to Erin Alberty, a Salt Lake Tribune reporter who won a Pulitzer Prize for her reporting on sexual assaults at Brigham Young University and Utah State University.

“The school is supposed to address complaints [of sexual assault] to ensure women have equal access to education,” Alberty said.

According to Know Your IX, a sexual violence advocacy group, “Schools are required to adopt and publish a grievance procedure outlining the complaint, investigation, and disciplinary process for addressing sex discrimination, sexual harassment, and sexual violence occurring within educational programs.”

This means anyone on a college campus can file a complaint with the school and if the school receives a complaint it must investigate.

But the complaint process has let major issues slip through the cracks.

Dr. Susan Strauss, an expert on bullying and harassment in education and the workplace said she believes institutions don’t understand what Title IX really is. She said she was once consulting for a school where the principal didn’t know what Title IX was at all.

“One of the things that I discover is that schools are not up to date as to what Title IX really is. They mislabel a good share of the misconduct as bullying. By doing that, they fail to recognize students’ civil rights,” Strauss said. “They don’t know how to conduct investigations and when they do them — if they do them at all — they do a haphazard job. Because they don’t understand what Title IX is in terms of sex discrimination and sexual harassment.”

In 2016, an internal investigation revealed there were “institutional failures at every level” at Baylor in investigating sexual violence on campus.

Also in 2016, two Baylor football players were convicted of sexual assault and a third was indicted. The scandal that followed ended up resulting in the firing of the head football coach and resignation of the athletic director.

An ESPN Outside the Lines report alleged Baylor had failed to act on the complaints of the women accusing the football players.

Title IX insists if a school receives a complaint, the school must investigate them. The internal investigation by the Pepper Hamilton law firm found “a fundamental failure by Baylor to implement Title IX…”

High-major schools aren’t the only place where problems like this occur. In 2016, former Loyola men’s golfer Ben Holm was sentenced to 10 years in prison for raping a 15-year-old girl when he was a high school student in Georgia.

The Phoenix reported the rape occurred after Holm signed his National Letter of Intent to play golf at Loyola.

When the Loyola athletics department let Holm on campus, it had no idea of the incident but the Title IX compliance process should have caught it, according to Lambrecht.  

“I would say people here think we should have caught that,” Lambrecht said. “I think people here would look at that and say ‘what didn’t we see? What red flag didn’t we see?’ That should’ve been caught and I think everybody in athletics would tell you that’s the case. I would imagine people were somewhat embarrassed.”

In the wake of the #MeToo movement, Michigan State University has also been at the center of Title IX issues.

Larry Nassar, former Michigan State and U.S.A gymnastics team doctor, was sentenced to 175 years in prison for sexually assaulting his patients when they were minors.

Nassar was under a Title IX investigation in 2014, which was handled internally by MSU. The internal investigation was set off when former MSU student Amanda Thomashow alleged Nassar inappropriately touched her during medical examinations.

MSU’s investigation was handled by the school’s Title IX coordinator. Title IX coordinators are responsible for a majority of a school’s Title IX compliance efforts. The investigation concluded Nassar’s actions were “medically appropriate” after the coordinator talked to three medical professionals and an athletic trainer. All four subjects the coordinator interviewed had personal ties to Nassar.

The personal and professional ties to the subjects being investigated is the biggest problem with the Title IX compliance process, according to Rousseau.

“When you have people within an organization, investigating claims against members of the organization, especially when you’re investigating at the time what was once considered world renowned doctors or athletes in basketball or football who are helping generate millions of dollars for universities,” Rousseau said. “A lot of times you had this conflict of interest for universities when they were investigating potential allegations.”

Strauss also said there are problems with the investigation process and as a result the victims are the ones hurt the most.

“First of all they have difficulty determining who’s credible and who isn’t. They don’t draw conclusions and if they do draw conclusions about sexual harassment, they don’t identify how they came up with those conclusions, the rationale behind it,” Strauss said. “The student victim becomes revictimized by the system that is supposed to keep the victim safe.”

Lambrecht said he doesn’t know exactly how to stop problems like Holm from slipping through the cracks, but suggested a background check on incoming athletes. As the admissions process stands right now, the student-athlete fills out a form just like any other student.

However, Alberty said she disagreed with the idea of background checks on incoming students. She said only doing checks on student-athletes would pose a problem because it ignores the rest of the student body. Also, in a lot of cases, any crimes the student committed in high school would have occured when the student was a minor and heard in juvenile court, which usually don’t show up on background checks.

In order to solve the problems with the compliance and investigation process, students have to be made aware of the resources that are available to them, according to Alberty.

“Very few students are aware of what Title IX is and its role investigating sexual assault,” Alberty said. “If students don’t know, or understand what Title IX is supposed to do, they’re not going to use it.”

Rousseau, whose firm, Kurowski Shultz, started doing Title IX investigations two years ago, said a way to prevent major problems from slipping through is to outsource the investigation process.

“It is my firm’s recommendation when we talk to educational institutions that they need to look into hiring someone to perform the investigation, even if it isn’t us,” Rousseau said. “The benefit of that is you’re hiring someone who is independent from the university, someone who is not a full-time paid employee of the university. An outside organization won’t have that conflict of interest with the university.”

While the solutions proposed by Lambrecht, Alberty and Rousseau focus on specific problems within Title IX, Strauss believes the solution won’t happen without looking at the root of the problem.

“What happens is it has to be dealt with from a systemic or holistic perspective. Merely doing training and having a policy isn’t going to be enough,” Strauss said. “But they also need to look at other things, what exists on the campus that lauds masculine homogeneity. We have to look at how does the school or university in ways they might not be aware create and sustain a male dominated culture. I think you have to start looking at the root cause.”

Loyola athletics director Steve Watson, Loyola athletics director of compliance Jay Malcolm and Loyola deputy Title IX coordinators Jessica Landis and Danielle Hanson all refused to comment on problems within the compliance process at Loyola.

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