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New Title IX Rules Prevent Schools from Suspending Athletes During Investigations

Although the new Title IX rules released in April of 2024 return to the policies of the Obama administration in many respects with regard to the due process protections and treatment afforded to respondents in Title IX disciplinary proceedings, there is one key protection left in place for students accused of Title IX violations, including those facing allegations of sexual assault. The rules allow student athletes to continue playing on their teams while the investigation into the complaint is ongoing. Not just athletes, but all students are protected from suspension or other disciplinary sanctions until the Title IX grievance process is concluded.

The Shift in Treatment of Accused Students

It used to be common for schools to ignore or downplay allegations of sexual misconduct on campus, particularly by athletes. However, when public attention was called to the practice in recent years, many colleges and universities changed their approach drastically. Instead of sweeping complaints under the rug, schools began to take quick and decisive action to show that they had zero tolerance for sexual misconduct. They had no tolerance for someone even accused of sexual misconduct. While ignoring complaints violated the rights of complainants, punishing students before a finding of responsibility violated the rights of complainants.

Suspension or Removal Under 2020 Rules

Because schools started taking disciplinary action against students accused of sexual misconduct while investigations into complaints were in progress and before a finding of responsibility, the 2020 rules issued by the Trump administration specifically prohibited educational institutions from suspending students or removing them from programs or activities unless they were found responsible for a violation at the end of the grievance process. Despite this provision, some schools still continued to suspend players during the pendency of proceedings. For instance, basketball player Terrence Shannon, Jr., was suspended from the University of Illinois at the end of last year after he was arrested and charged with rape. The incident in question occurred out of state months previously, and Shannon had cooperated with law enforcement officials in an investigation since initial accusations arose. Although school officials were aware of the allegations and the investigations, they did not take action until a warrant was issued for Shannon’s arrest months after the incident.

Shannon sued the University and obtained a temporary restraining order against the school that allowed him to return to the school and to the basketball team. His attorneys alleged that Title IX rules prohibited the school from removing him from the program or suspending him unless he was found responsible or the school determined that he posed an immediate threat to health or safety. Eventually, the University dropped its investigation into the incident, and Shannon dropped his lawsuit against the University.

Presumption of Innocence

Section 106.45(b)(1)(iv) of Part 34 of the Code of Federal Regulations requires Title IX school grievance procedures to ”include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.” When a school suspends a student accused of a violation or removes them from a program or even places limits or conditions on their participation in a school program before the conclusion of an investigation and adjudication, the actions imply a finding of guilt and belie the presumption of innocence.

This was the gist of the lawsuit Shannon filed against the University of Illinois. He alleged by suspending him, they were ruining his career and treating him as if he had already been convicted.

In granting injunctive relief, the court weighed the likelihood of harm to the student compared to harm to the university. The court found the student “would suffer irreparable harm without an injunction” while there was no harm to the public interest by granting injunctive relief “to allow for additional procedural safeguards while [the student] is presumed innocent of the criminal charges.”

Grievance Procedures Should be Complete Any Sanctions are Imposed

The new rules that take effect August 1 will include 34 C.F.R. §106.45(h)(4), which requires schools to complete the grievance process completely before imposing “disciplinary sanctions.” This should mean that athletes cannot be removed from their teams or face any negative consequences based on Title IX until adjudication and any appeals are over. The Department of Education noted that “[w]aiting to impose disciplinary sanctions until the conclusion of the grievance procedure through any appeal is consistent with the treatment of sanctions pending appeals under the 2020 amendments.” Thus, this is one aspect of the rules that essentially will not change, although it may be given more attention than it received in the past.

In the commentary on the Final Rule discussing the proposal in §106.45(h)(4), the Department of Education took the opportunity to clarify that the provisions of §106.44(g) through 106.44(i) enable schools to act to protect the health and safety of students as well as the educational opportunities of the complainant. One example is the ability to remove a respondent from employment or extracurricular activities “as a non-disciplinary measure” so long as certain conditions are met. As long as the measures are designed for protection and support rather than punishment, these measures are allowed during grievance procedures and informal resolution processes.

Emergency Removal

The Department of Education explained that Section 106.44(h) allows a school to remove a Title IX respondent from an educational program or activity on “an emergency basis.” Before doing so, the school must complete an individualized safety and risk analysis, and the analysis must lead to the conclusion that the removal is justified due to “an imminent and serious threat to the health or safety of the complainant, students, employees, or other persons arising from the allegations of sex discrimination.” The school must give the respondent prompt notice and an opportunity to challenge the removal decision. Disciplinary sanctions may be imposed “only after a finding that sex discrimination has occurred,” the Department reiterated.

Help Enforcing Title IX Rights

Both complainants and respondents deserve to have their rights respected and protected in a Title IX proceeding just as they would in a civil or criminal court proceeding. It can be very difficult to ensure that justice is served without the assistance of an experienced Title IX attorney, even in campus proceedings.

The team at Duffy Law is devoted to upholding Title IX ideals. If you have questions about a Title issue or want to discuss assistance with a Title IX complaint, disciplinary proceeding, or appeal, schedule a confidential consultation with us today.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.