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What You Need to Know About Bias Toward Athletes in Title IX Proceedings

The concept of fairness is deeply ingrained in our sense of justice, whether that justice is meted out through the court system or in a venue like a campus disciplinary proceeding. Bias of any type is considered to tilt the scales of justice in one direction and is therefore viewed as inherently unfair. This includes bias for and against athletes in Title IX cases. When the bias acts in favor of or against an individual’s preferred outcome, they are often less likely to acknowledge it, but the bias remains nonetheless.

Because biases reflect cultural standards in our society, they are inescapable. It is important for any attorney working on a Title IX case to understand the biases that may come into play at various stages of the proceedings and strategies for addressing those biases so they can fully protect their clients’ rights and interests.

Bias Matters No Matter Which Side You’re On

In recent years, bias has become a hot issue for attorneys representing respondents in Title IX cases. Those accused of wrongdoing take an offensive stance and argue—often successfully—that they have been the victims of bias. However, in many situations, it is the complainants who suffer from bias as their allegations are not given serious consideration.

Whether an attorney is seeking justice for a student accused of wrongdoing or one who is seeking to redress the harm done to them, that attorney needs to be fully aware of the bias factors potentially involved in the investigation, deliberations, findings, and penalties associated with the case. Bias matters for every actor in every situation. We cannot escape it, but that makes it all the more important to bring it to light and address it.

The Office for Civil Rights Requires Colleges to Establish Safeguards to Avoid Bias

Schools that receive federal funding and are subject to Title IX have a legal duty to avoid bias. According to guidance from the Department of Education’s Office for Civil Rights (OCR), this includes:

  • Ensuring that the Title IX Coordinator, investigators, facilitators, and decision-makers receive training on how to serve impartially and avoid bias
  • Using training material that does not rely on sex stereotypes and that promotes impartiality in investigations and adjudications
  • Allowing complainants and respondents the opportunity to appeal findings on the basis of conflict of interest or bias

The OCR has addressed schools’ use of “trauma-informed” approaches during an investigation and adjudication of Title IX cases. Such techniques are permitted if they do not violate Title IX regulations. However, the OCR notes that experts have determined that it can be “challenging” to apply trauma-informed techniques in an “impartial, nonbiased manner.”

Therefore, attorneys need to learn whether and how a school has been using trauma-informed techniques at any point in the proceedings. It may be necessary to consult an expert to determine whether those techniques resulted in bias.

Bias on the Basis of Athletic Status

Student athletes receive a variety of benefits during their competitive careers that most other students have no chance of receiving. This can include:

  • Admission standards with lower academic requirements
  • Scholarships and allowances
  • Specially prepared meals
  • Preferred housing
  • Access to assistance from physical therapists, nutritionists, and other professionals
  • On-campus transportation
  • Extended deadlines for academic work

Schools provide benefits to encourage success on the field, which bolsters the school’s reputation and increases fundraising. Success—and those added perks—encourages other athletes to come to the school and continue or build on that success.

Because athletes can be treated somewhat like commodities rather than students, sometimes their treatment is more detrimental than that received by other students. They may be forced to ignore injuries that can cause health issues later in life. Decisions may be made on their behalf. They are often burdened with unrealistic expectations and subject to enormous pressure. They may have no time to study or socialize.

Because they are perceived as a commodity and treated differently in so many different ways—good and bad—it seems difficult to believe that athletes would be treated the same as other students when it comes to Title IX investigations and school policy violations. Particularly at larger institutions, when an administrator looks at an athlete, they see something more than just a student. 

They may see someone who they feel should be setting an example for others and should be held to a higher standard. Or they may see someone who should be forgiven for indiscretions because they were trained to be aggressive or because they simply bring in too much money. Bias may work in favor of an athlete or against them, but it is almost certainly there in one form or another. Attorneys need to dig deep and look for the factors that can have an inappropriate influence on the outcome of the case.

Bias Against Males

Male students accused of sexual misconduct in violation of Title IX or school policies frequently feel that they are suffering from institutional bias against them for a variety of reasons. New lawsuit results appear regularly, sometimes recognizing the potential validity of these assertions and other times dismissing them as unproven or irrelevant.

Presumption of Victimhood

One argument raised to show the prevalence of bias against males in Title IX cases is the way many colleges effectively establish a presumption of victimhood in the media as well as in campus procedures. For instance, posters on campus may warn that one out of every five women will face sexual assault. Flyers in the women’s restrooms may inform women of steps they can take if they don’t feel safe with a companion. All the messages combined point to men as perpetrators of violence, and they build an atmosphere of distrust and paranoia.

If a student files a complaint of sexual assault, the Title IX Coordinator immediately takes steps to offer medical aid, counseling, and help to get through the trauma. This creates a presumption of victimhood.

While Title IX provides some equal protections for respondents in cases, it does not create the same obligation to provide immediate assistance. Long before the investigation even begins, there arises a presumption that the accuser suffered and needs help while the person accused does not. In many cases, the complainant is female and the respondent is male. There is a presumption that the female is a victim.

Bias Lawsuits

Respondents found responsible in Title IX cases have frequently asserted that the school violated their due process rights during proceedings. More novel claims have arisen in recent years alleging that schools have cultivated an anti-male bias and in doing so, violated Title IX. Sometimes, they succeed, at least to a degree. 

In Doe v. Purdue, for example, the 7th Circuit Court of Appeals ruled that a student who was suspended after a finding of responsibility adequately alleged that the school violated Title IX by imposing a punishment infected by sex bias. The court asked simply whether if the facts alleged by the student were true, did they raise a plausible inference that the school discriminated against him on the basis of sex.

The student argued that the school had a financial motive to discriminate against males during investigations of alleged sexual assault. Creating a process biased against men would increase the number of students punished and signal the school’s commitment to preventing sexual assault on campus, thereby protecting federal funding. 

One of the elements the court seemed to find most persuasive, however, was the fact that a school organization prominently posted an article with the title “Alcohol isn’t the cause of campus sexual assault. Men are.” Judge Barrett stated that the statement could be viewed as blaming men as a class for sexual assault on campus rather than the individuals who commit such assault.

On remand, a different judge ruled that the questions of Title IX bias could proceed to trial, despite the school’s attempt to have the issue dismissed on summary judgment. “The Court cannot simply assume,” wrote Judge Kolar “that John’s sex was not a motivating factor in the more biased aspects of the disciplinary process.” The judge noted “background facts suggesting a potential culture of bias at Purdue against men in sexual assault cases” along with other alleged facts could lead a juror to conclude that the student’s punishment was motivated by sex discrimination.

Work with an Attorney Who Understands the Impact of Bias in Title IX Cases

Whether a student is pursuing a Title IX complaint or responding to allegations, that student deserves to have their claims heard and evaluated fairly. While it is impossible to avoid bias in many cases, by identifying it and highlighting its impact on procedures and outcomes, an attorney can help students achieve a fair resolution.

The dedicated team at Duffy Law understands what is at stake in a Title IX case, and we explore every potential avenue to ensure that our clients receive all opportunities to have their cases heard and evaluated fairly. We invite you to contact us if you have concerns about a potential or ongoing investigation or if you are considering an appeal of an unfavorable decision.

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.