A Trump-era change to Title IX, implemented as part of a sweeping effort to strengthen due process, has made it too difficult to discipline college athletes accused of sexual misconduct, according to critics of the new rule.
The U.S. Department of Education instituted a rule change in 2020 that prohibits schools from imposing "disciplinary, punitive or unreasonably burdensome" sanctions during sexual misconduct investigations. Removal from a sports team was among the actions the government said could be deemed unreasonable. The rule was designed to ensure due process for the accused, but some coaches and others are concerned that the pendulum has swung too far.
A number of Title IX administrators and academics plan to press the federal government to reconsider the rule when the Biden administration proposes its changes to Title IX this spring.
W. Scott Lewis, managing partner with TNG Consulting and a member of the advisory board of the Association of Title IX Administrators, said he has taken several calls from school officials asking about the rule and knows of coaches who have been forced to keep players on rosters against their personal wishes.
"The coaches I spoke to and the ADs I spoke to, to a person, were mainly calling to make sure they were hearing it properly, 'Right, so say, so wait a second, I really can't do this? Even on an interim basis?'" Lewis said. His Title IX Administrators group is among those who plan to lobby the Department of Education.
While the rule doesn't outright prohibit the suspension of a player in light of an allegation, it says a school must first show that the athlete poses an immediate threat to a person's physical health or safety -- which Lewis says is a high bar to meet. The rule has been decried by some coaches who say it's taken away their discretion to enforce codes of conduct.
"I believe the head coach in charge of his or her program has the duty and responsibility to do what's right for the individual and do what's right for the team, and most often those things are aligned, but not always," Stanford football coach David Shaw, who has been a public advocate of addressing sexual violence prevention among athletes, told ESPN.
Shaw said he makes it clear to players what he expects on and off the field, and he holds them to those expectations.
"For me, the crux of it comes down to head coach discretion, and I think that's what head coaches should have."
Coaches who feel it's the right thing to remove an accused player from a team are now being told they can't, pending an investigation, leaving that coach to face public scrutiny or manage strained team dynamics, critics of the rule change told ESPN.
At Syracuse in April 2021, a lacrosse player was suspended from the team for "violating team rules and expectations," coach John Desko told reporters at the time. This followed a report of a domestic violence allegation. But the player, Chase Scanlan, was reinstated to the team just days following the suspension, Desko said. A lawyer advising the player says he called the school to inform them of the new Title IX rule.
"I raised the point with [Syracuse] and that's what happened," Peter Schaffer, an attorney and sports agent advising Scanlan told ESPN. "You have to follow the rules, and these kids are entitled to due process. You can't sully someone's name without due process."
Desko announced the suspension and reinstatement at a news conference in April 2021 but did not answer further questions or offer additional comment about the moves, and he declined to speak about the incident for this story when contacted by ESPN.
Scanlan was arrested by Syracuse police on May 7, 2021, and was charged with criminal mischief and harassment after he allegedly broke a woman's phone and wrapped his arms and legs around her, squeezing her until she "thought he was going to kill [her]," the woman told police. He pleaded not guilty, and the university's investigation is ongoing. He is no longer on the lacrosse team because he declared for the National Lacrosse League draft in August, Schaffer said.
A spokesperson for Syracuse declined to comment.
The woman who reported Scanlan filed a Title IX lawsuit against Syracuse in August claiming that the school ignored a pattern of violence with Scanlan. Her attorney, James Aliaga, said there was a "psychological proximity" to consider when deciding whether to remove someone from a team.
"I don't know if commentators or experts are looking at what it does to a survivor if a school says 'There may or may not be a Title IX issue here, but we're going to let this student go back into the regular state of affairs and play lacrosse,'" he said.
Title IX experts point to a separate case at Brown University as an example of the rule having an impact. A federal judge reversed Brown's decision in November 2021 to suspend a lacrosse player from his team and studies after a woman claimed he had sexually assaulted her. The university had completed a threat assessment and, while it answered most of the questions "in the negative," the school suspended him "due to the egregious nature of the alleged behavior," according to court filings.
The judge wrote in her Jan. 25 ruling in the breach-of-contract lawsuit that Brown's threat assessment team merely "focused on the nature of the unproven allegations" and suspended the male athlete before performing any investigation, and she noted that the athlete had abided by a university-issued no contact order.
"[Brown] faces little hardship in allowing the plaintiff to proceed with his academic and athletic activities while the disciplinary process plays out. The ramifications of the suspension to the plaintiff, however, are substantial," U.S. District Judge Mary S. McElroy wrote.
Andrew Miltenberg, a New York attorney who has represented several athletes making due process arguments in Title IX claims, said the new rule prevents impulsive reactions that could destroy athletes' careers before an allegation is fully investigated.
"Athletes, as we know, have a very limited window. And if they lose part of that window in college, it's, in many cases, devastating," he said. For any athletes on scholarship or contemplating a professional career, "being suspended is usually the death knell," he said, and any move to roll back the provision would put athletes at a "very specific risk."
Since the change went into effect in August 2020, Miltenberg has helped four or five Division I and Division II athletes facing sexual misconduct investigations get reinstated to their teams without resorting to filing a lawsuit, he said.
While the Title IX rule allows a school to remove an athlete from a team on an emergency basis, Lewis of the Title IX administrators group said that someone meeting the criteria would likely be in jail. "If someone says, 'Bobby hit me two weeks ago,' then by definition Bobby isn't an imminent risk as she/he hasn't hit anybody in two weeks," Lewis said.
A Title IX coordinator at a Power Five school who spoke to ESPN on the condition of anonymity said suspending someone from a team shouldn't be a "knee-jerk reaction" to an allegation of misconduct. He said there are other ways for coaches to manage their teams within the rule, like suspending someone for a related offense, such as a rules, curfew or substance abuse violation.
Yet to do that, an athletic department would need a "robust code of conduct" that specifies rules in writing -- for example, that an athlete's mere presence in an environment with underage drinking is grounds for suspension, said Liz Paris, partner and hearing officer director with Van Dermyden Makus investigations law firm in Sacramento, California. The department also would have to consistently enforce its code, she said.
"You cannot be suspended simply because there was a sexual assault allegation against you ... So any other action taken is going to have to be based on something other than the [sexual] allegation itself," she said.
At Michigan State last year, records obtained by ESPN show that two separate reports of sexual misconduct involving athletes appear to have been treated differently by the athletic department.
In February 2021, football coach Mel Tucker learned of a sexual assault allegation involving two of his players and "suspended [them] indefinitely from the team. ... They were no longer to be a part of any team activities," according to a Michigan State University police report obtained by ESPN. He told police investigating the allegation that he felt his decision "was right given the situation," according to the report. The report does not state when Tucker first became aware of the school's decision to open a Title IX investigation. No criminal charges were filed. The Title IX investigation -- which was delayed because of the police investigation -- found one player not responsible for violating the school's sexual misconduct policy, and the investigation into the other player is ongoing.
Separately, police investigated a sexual assault report from July 2021 involving a basketball player, according to records obtained by ESPN. The records show that Michigan State's Title IX office was aware of the report but did not conduct an investigation, and there was no indication the player's status on the team was affected. No criminal charges were filed.
A spokeswoman for Michigan State told ESPN that "the actions Coach Tucker took last spring were in due to the [former] players violating team rules, which is at his discretion." She also said each report is handled "case by case" and that "some situations may involve more than one infraction, Title IX or otherwise. Each of the sports in MSU Athletics has team rules which are communicated to the athletes."
But according to a lawsuit that one of the football players filed in October, Michigan State claimed that the "restrictions on [his] football participation were the result of 'athletic department policy'" without specifying the policy. The lawsuit cited the Trump-era rule and stated that Michigan State violated Title IX by suspending the football player. According to the lawsuit, Michigan State did not claim that its suspension was an "'emergency removal,' nor did it provide a safety and risk analysis, nor provide Plaintiff with an opportunity to challenge the decision immediately following the removal."
A judge dismissed the lawsuit the same month it was filed after the player, who has since transferred to another Division I program, declined to use his name in court proceedings. The player's attorney told ESPN that the family is still working out what to do next.
The Michigan State spokeswoman didn't provide ESPN with a copy of the athletic department policy or team rules.
Survivor advocate, educator and speaker Brenda Tracy said she supports Tucker's decision to remove the players. "He absolutely did the right thing. He sent a message to the rest of his team that their behavior matters," she said.
Tracy, who has said she was gang-raped by college football players in 1998, has become known for visiting college locker rooms to talk to athletes and coaches about the role they play in combating sexual violence. She said she spoke to Tucker's team in August and has participated in many events at Stanford with Shaw.
Tracy said she is upset about the rule change, especially as more coaches have become proactive when responding to reports of sexual misconduct. In the past, coaches could easily refuse to address allegations and defer to the criminal or Title IX processes, which can take several months to play out, she said.
"I've spent all these years cultivating courage in coaches to do the right thing and now they're being told that they can't," she said.
Tracey Vitchers, executive director of It's On Us, which engages students to combat campus sexual assault, said the rule could put a "chilling effect on other students who might have experienced sexual assault."
"As far as public perception goes, he's still showing up for class, he's still showing up for practice, he's still competing on Saturday," said Vitchers, who says her organization has been raising this issue with the U.S. Department of Education since the summer. "It's going to make [a survivor] second-guess if it's worth it. It creates an unsafe environment for other members of the campus community."
On the other hand, the rule allows coaches to lean on the federal law as a way to keep a good player accused of sexual misconduct on the team, said David A. Grenardo, a professor at St. Mary's University School of Law in San Antonio. "They probably say, 'This is fantastic. I'm not going to take the heat. This doesn't have to fall on me,'" he said.
Grenardo says he looks at the situation from both sides, as a former college football player -- he played at Rice University in the 1990s -- and as an attorney who once did pro bono work representing domestic violence victims. He said he wrote proposed guidelines for amending the law and sent them to compliance and legal officers with several conferences, including the Big Ten, and to the U.S. Department of Education's Office for Civil Rights.
His measures advocate for an athlete's removal from the team if there's corroborating evidence to the reported misconduct, such as a sexual assault exam report, a police report, or a prior incident of misconduct. That would be enough, he said, to provide some assurance against a false report while the longer investigation continues.
In June 2021, the NCAA signed a letter from the American Council on Education in opposition to several of the 2020 Title IX changes. The letter did not explicitly reference the provision, but it asked the Department of Education to "be cognizant of the need to provide flexibility to ensure campuses can navigate the multitude of different legal requirements and institutional culture and values" in making decisions in the Title IX process. It also said that "campuses can best respond to allegations of sexual assault by using processes that are part of, or at least align with, their institutional student codes of conduct." A representative from the NCAA did not respond to requests for further comment.
The NCAA is enacting a new requirement this summer that will require athletes transferring to another school to disclose details of any criminal conviction or Title IX discipline as the result of a report of sexual misconduct as well as whether any Title IX proceeding was incomplete at the time of transfer.
Several groups whose members have a stake in the rule change declined to comment, including the National Association of Collegiate Directors of Athletics and the National Association for Athletics Compliance. A spokeswoman for both organizations wrote in an email, "The consensus of the NAAC Officers was that the report you referenced is correct, but they did not believe it was within their athletics compliance wheelhouse to expand upon. It is a Title IX mandate, and they are just required to follow the legislation that is in place."
The National Association of College and University Attorneys, which provides Title IX training, also declined comment.
ESPN researcher John Mastroberardino contributed to this report.