Prepare Now to Comply with NCAA’s Expanded Campus Sexual Violence Policy
Higher Education 03/31/22 Lindsey Davis, Amanda Collins
In August of 2017, the NCAA’s Board of Governors passed a Policy on Campus Sexual Violence (the “Policy”), applicable to all member colleges and universities. Since then, the Board of Governors has expanded the Sexual Violence Policy, imposing additional requirements on member colleges and universities for the 2022-2023 school year. Along with the expansion, the NCAA released an FAQ to guide member institutions in their compliance efforts. While the NCAA’s guidance offers some insights, many questions remain not fully answered.
There is no doubt that compliance with these expanded obligations places new burdens on colleges and universities. As deadlines approach, colleges and universities participating in NCAA athletics should become familiar with the new requirements now to ensure they implement procedures necessary for compliance. Summarized below are the key takeaways, as well as answers to some of the most frequently asked questions.
What does the Sexual Violence Policy require of member colleges and universities?
The Policy requires member college and university chancellors or presidents, directors of athletics, and campus Title IX coordinators to annually attest that:
- The athletics department is informed, integrated, and compliant with the following:
- Institutional policies and processes regarding sexual violence prevention; and
- Proper adjudication and resolution of sexual violence and interpersonal violence.
- Policies and processes are readily available within the department and provided to student-athletes, including:
- Institutional policies and processes on violence prevention and adjudication; and
- The name and contact information of the campus Title IX coordinator.
- All student-athletes, coaches, and staff are educated on sexual violence prevention, intervention, and response each year.
Additionally, member institutions are now required to:
- Collect annual disclosures from all incoming, continuing, and transferring student-athletes related to their conduct that resulted in discipline through a Title IX proceeding or a criminal conviction for sexual, interpersonal, or other acts of violence, and collect the same from transfer student-athletes if a Title IX proceeding related to their conduct is ongoing;
- Take reasonable steps to confirm whether such student-athletes have been disciplined or criminally convicted of sexual, interpersonal, or other acts of violence; and
- If recruiting incoming or accepting transfer student-athletes, have a written procedure that directs its staff to gather information from a former institution about any discipline or criminal conviction relating to any sexual, interpersonal, or other act of violence.
What changed between the prior Policy and the new expanded Policy?
Items 4-6 were added to the expanded Policy, while items 1-3 have been required since 2018.
How are “sexual violence,” “interpersonal violence,” and “other acts of violence” defined?
Sexual violence includes forcible and nonforcible sex offenses, ranging from sexual battery to rape. Interpersonal violence includes violence that is predominantly caused due to the relationship between the victim and perpetrator, including dating and domestic violence. Other acts of violence, for the purposes of the Policy, include murder, manslaughter, aggravated assault, or any assault that employs the use of a deadly weapon or causes serious bodily injury. Per the FAQ, schools may choose—but are not required—to include additional forms of misconduct as part of their disclosure process.
What is the deadline for complying with the Policy?
Each member college or university should already be complying with items 1-3, as they were included in the prior policy. The next attestation relating to these requirements is due this May 15, 2022.
Items 4-6 first apply to the 2022-2023 school year, and attestations relating to those items are due May 15, 2023.
What happens if my institution fails to comply by the deadlines?
Any institution that is not able to attest to their compliance with the requirements of the Policy will be prohibited from hosting any NCAA championship competitions for the next applicable academic year.
Does my institution need to collect annual disclosures from all recruits, or just student-athletes who are attending?
Only those student-athletes that are incoming, continuing, or transferring need to complete a disclosure form. Accordingly, institutions only need to collect disclosures from students who have accepted at that school.
Does an informal resolution under a Title IX proceeding count as “discipline” under the new Policy?
Yes, informal resolutions under Title IX or similar campus proceedings that are the result of a final finding of responsibility for sexual violence, interpersonal violence, or other acts of violence are considered discipline and should be disclosed.
What is considered a “reasonable step to confirm” a student-athlete’s disclosure? Do I have to follow up with every student-athlete’s educational institution?
According to the FAQ, “it is up to the school to determine and take reasonable steps to confirm whether incoming, continuing, and transfer student-athletes have been found responsible through a Title IX proceeding or criminally convicted” of covered offenses. Institutions should be prepared to follow up with a student-athlete’s previous educational institution to confirm a disclosure that a student was disciplined through a Title IX proceeding. Institutions should further be prepared to consider criminal background checks to confirm a disclosure that a student was convicted of engaging in a covered offense.
The NCAA does not presently offer any guidance as to the circumstances under which colleges and universities should confirm a student-athlete’s statement that they have not been disciplined through a Title IX proceeding or criminal conviction. The NCAA leaves this consideration to each member institution. We recommend that if your institution becomes aware of credible information suggesting that a student-athlete was dishonest in their attestation, then it take steps to reasonably verify the information the student provided.
Are there FERPA considerations to keep in mind when confirming a student-athlete’s disclosure?
FERPA prevents educational institutions from sharing personally identifying information in student education records with a third party absent written authorization or a qualifying exception. We recommend that your institution’s annual disclosure form seek permission from the student to allow your institution to discuss and obtain information regarding covered discipline and/or convictions, and that you request all student-athletes complete an authorization form permitting your institution to obtain information from the student-athlete's other educational institutions and permitting your institution to provide information to other educational institutions (in the event of a transfer, for instance).
Depending on applicable state law, further or more specific authorization may be required. We recommend consulting with legal counsel regarding state-specific considerations.
What does the Policy require my institution to do if a student-athlete was disciplined through a Title IX proceeding or criminal conviction for sexual violence, interpersonal violence, or other acts of violence?
The NCAA has not provided guidance as to what an institution should do if a student-athlete was disciplined for any of the above. Instead, the NCAA provides that, after confirming the information, the school should “take appropriate action” to determine the student-athlete's eligibility.
It is critical that NCAA member colleges and universities take action now to ensure full compliance with the Sexual Violence Policy. For assistance developing related policies, annual disclosure forms, and/or FERPA authorizations, and for all other questions, please contact your local Quarles & Brady attorney, or