The NCAA quietly delayed a new, high-profile campus sexual violence policy that requires athletes and schools to document and track misconduct cases — opting instead for a year-long postponement that is frustrating advocates for victims of campus assault.
Now college officials can wait until the 2022-23 academic year to confirm they are complying with an expanded NCAA policy that would apply to more than 1,200 schools. During that two-year delay, athletes might not face penalties if they do not disclose past accusations or discipline until then, while schools could avoid accountability if they do not soon build processes to match the NCAA’s policy.
A unanimous, closed-door NCAA board vote last month put off the measure originally set to take hold in 2021, according to meeting notes reviewed by POLITICO that have not previously been reported, while the association and schools continue to battle lawsuits and media scrutiny targeting their handling of sexual misconduct.
The organization justified the delay by saying schools are grappling with the coronavirus pandemic’s effect on their campuses and addressing a new Title IX rule governing how colleges and schools handle accusations of sexual misconduct that Education Secretary Betsy DeVos created and President-elect Joe Biden has pledged to end.
“It doesn’t make any sense, unless they think the athletic departments have too much to deal with,” said Rep. Donna Shalala, a Florida Democrat and former University of Miami president who introduced legislation last year to scrutinize the NCAA’s practices.
“But this is about people getting hurt,” Shalala said. “That means you pay attention to safety. Either you’re committed to the safety of your students or you’re not. That should be your priority. It’s not just Covid. It’s literally crimes.”
A 2019 USA Today investigation concluded college athletes often transfer to other schools and return to competition even after being expelled, convicted or otherwise disciplined for sexual misconduct. The association, which regulates broad aspects of college athletics, argued in court that it does not have direct oversight over athletes and no legally recognized duty to three women who sued the NCAA and a former track coach who worked at the universities of Texas and Arizona over sexual abuse allegations earlier this year.
Under pressure, however, NCAA officials approved an expanded campus sexual violence policy in late April. That policy would require all college athletes to disclose to their schools if they were investigated, disciplined through a Title IX proceeding, or criminally convicted for “sexual, interpersonal or other acts of violence” each year.
NCAA schools would then need to take unspecified “reasonable steps” to confirm that information, share it with other schools and create policies to request details from other institutions when an athlete is recruited or attempts to transfer. University presidents, chancellors, athletics directors and campus Title IX coordinators would then have to attest to the NCAA each year that they followed the updated rules.
Enacting those steps requires an enormous effort between university departments, said Melissa Carleton, a partner at the Bricker & Eckler law firm who practices in education law. The NCAA also said several schools are still trying to determine how new Education Department regulations affect their policies to address sexual violence allegations.
“In establishing the updated deadline, the board noted the new Title IX regulations implemented by the Department of Education in August, as well as the evolving impact of the Covid-19 pandemic for campuses across the country,” NCAA spokesperson Stacey Osburn said in a statement. “The board remains committed to campuses combating sexual violence and the expanded policy is the latest of several steps it has taken in the past ten years.”
An NCAA task force of university attorneys, Title IX coordinators and other administrators will also write guidelines to assist schools, Osburn said.
Pandemic-driven chaos and uncertainty still are not keeping the NCAA from pressing ahead with internal player pay rules and lobbying Congress for antitrust protection. The athletic association is also setting out detailed standards for Covid-era competitions, planning to stage the March Madness men’s basketball tournament this spring exclusively near its Indianapolis headquarters and taking a hands-off approach to a football season vexed by quarantines and cancellations.
“I do think that schools and the NCAA are using Covid-19 for cover to their own advantage, unfortunately,” said B. David Ridpath, an Ohio University sports business professor and past president of the Drake Group higher education think tank.
“If you have coaches, athletes or others who are participating in sexual assault, sexual violence, or sexual harassment, certainly you can come up with penalties for that — if you can come up with penalties for things like getting an extra pair of shoes,” Ridpath said. “I don’t view it as that big of a mystery.”
NCAA President Mark Emmert first promoted plans to expand the association’s sexual violence policy in January, telling reporters that schools should have access to students’ background information when deciding whether to admit them to campus.
“There’s no mandated background checks right now,” Emmert said at the NCAA’s annual conference. “We want to make sure that everybody has that information and that everyone is making decisions based on the best information available. And we’re not sure that that’s always the case today."
The new policy still does not cover a significant amount of sexual misconduct, Carleton said. Its wording suggests disciplinary cases that get resolved informally would not make the cut for disclosure, she said, and it includes no system to report and share information on misconduct that university staff, coaches or volunteers commit.
“It covers sexual assault and dating and domestic violence, but it doesn’t cover stalking,” Carleton said. “It doesn’t cover sexual exploitation, like facilitating sexual assault by someone else by giving a victim drugs or alcohol, or if you tape somebody without their consent and spread it all over campus.”
Waiting another year could help the NCAA and schools nail down details that improve the policy and expand compliance, Carleton said. At the same time, advocates are concerned about a delay enacted well after the NCAA signed off on the policy.
“I don’t see that there’s any less need for this policy, just because of the pandemic,” said Neena Chaudhry, the general counsel and senior education adviser for the National Women’s Law Center. “I also understand that schools have a lot to contend with, but this is an NCAA policy. So I really don’t understand why they can’t go forward, and that is a concern.”
“They passed the policy,” Chaudhry said. “So it does seem like it’s going backwards, and I wonder what’s really behind that.”
Katherine Redmond, founder of the WeLEAD advocacy organization that targets off-field athlete violence, said the association has “continued to kick the can.”
“They have resisted every attempt to really do the right thing by athletes,” Redmond said. “They’ve found different end-arounds, they’ve found loopholes. I have no trust with regard to the NCAA setting this up, and frankly I don’t believe it’ll make a difference.”
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