Communicating with Colleges About High School Student-Athletes

In 2022, the NCAA passed new rules for their member institutions which included several training and education requirements. In addition, the NCAA included requirements about reporting violations of policies that are included under Title IX, especially violations of sexual misconduct. While these rules do not govern the NAIA, NJCAA or the CCCAA, many of their schools are using similar forms to get information about prospective student- athletes.

What are the rules?
In essence, the rules require that the school recruiting a prospective student-athlete will ask questions to the school the athlete is coming from about whether or not the athlete violated any policy that would fall under Title IX. Specifically, those policies are sexual assault/rape, fondling, dating or domestic violence, stalking, or retaliation.

Additionally, the school is required to ask these questions of the prospective student-athlete, and the prospective student-athlete is required to sign off if they have fully disclosed any of these violations to the school they are seeking to attend.

Of course, high schools are not subject to NCAA regulations and rules, as they are not members of the NCAA. Only an NCAA member school that was sending a student-athlete to another NCAA school would be required to do the disclosure.

In short, NCAA member schools are required to sign off that they have asked the sending school and the athlete. That said, high schools and junior colleges are not members of the NCAA and are not bound to answer. However, that can have a detrimental effect on the student-athlete, as the athlete may be telling them that they were not involved in any incident, but the NCAA school receiving the athlete cannot confirm it with the school they are coming from without the form being filled out.

The NAIA, NJCAA and CCCAA do not have the exact same requirement, but many are asking schools they are recruiting from to fill out similar forms.

What are they asking?
Some colleges are asking only the questions they are required to under their regulations and rules. Others have chosen to expand the behaviors to include issues of “serious misconduct.” Those offenses may include fighting, alcohol, drug use, drug distribution, weapons, offenses, felony theft, arson, or any other types of harassment, bullying, etc., based on race, religion, ethnicity, national origin or any other protected class (e.g., ‘hate crimes”).

Some colleges are expanding the question, but yet leaving it vague and almost up to the school to determine what constitutes “serious misconduct.” This is not a good practice.

Lastly, some colleges are asking schools to disclose if the student has been “involved” in any of these activities. This is also not a good practice, as people who are victims, witnesses or reporters of these offenses would be considered “involved,” but would likely not want their name to be disclosed when they were in that role. In particular, victims of violent offenses or other traumas are very concerned about the information surrounding their attacks or harassment being disclosed to others in any form. Doing so can create secondary trauma.

Who are they asking?
A lot of colleges that were only asking about Title IX offenses have figured out to send that form to the school or district’s Title IX office. However, many, including those who are asking the broader questions, are sending them to the athletic director or, in some cases, the coach themselves. That is also not a good practice.

Who should be answering?
The person who should be answering the questions on the sections of the form is the person who is in charge of the record-keeping for the answers to those questions. In other words, if the question is about Title IX offenses only, then the form should be going to the district’s or school’s Title IX coordinator. If the form contains questions about other types of civil rights harassment, then whatever office handles those types of violations and reports will be the appropriate person to answer those questions. If the college is asking about all types of discipline, a form like that might find its way to two or three different offices, depending on where the records are kept, and who is in charge of releasing those records.

Even if an athletic director or a coach knows the outcomes or details of any of these types of offenses, they should not be the individual disclosing this to the college that is recruiting the prospective student-athlete. Doing so may provide the college conflicting information, misinformation, or appear as if the athletic director or coach is trying to somehow influence the way the information is being received, regardless of the actual intent.

Athletic directors, coaches and other school administrators should be wary about answering any questions dealing with criminal backgrounds, as the criminal backgrounds of minors are often sealed, and revealing any information about that may be a violation of state law and could get those individuals and/or the school district in hot water. Even if your student-athlete has disclosed verbally to the college about a criminal background, and they ask you to help confirm the information (dismissal, probation, etc.) to the college, you should not do so. Their family can get access to those records and share those with the college if they are so inclined. When a record like that is sealed, it is to protect the minor, and if the minor or their family choose to disclose that record to anyone else, it is their choice. Although very rare, a few smaller colleges pose these questions to high schools in writing.

If the college wants to know general information about an athlete – work ethic, leadership, talent, potential (e.g., letter of recommendation type of information) – coaches and athletics directors can reply to the best of their knowledge (of course, not disclosing any protected information).

FERPA Implications
With regard to FERPA implications of these records, the education records of minors belong to their parents or guardians until they are adults. The colleges that are asking to have these forms filled out should attach a FERPA waiver, signed by the student and their parent or guardian. Your school/district knows to keep a copy of that signed waiver as well as a copy of their response.

In these days of increased liability and concerns about reputation, it’s not surprising that colleges are asking for this type of information about prospective student-athletes. Some of the schools that are recruiting your student athletes are not using it as a preclusion for them to play or attend, but some may and that is their prerogative. In the end, it is important that the college is asking the appropriate questions, and the person who keeps those records is providing accurate answers.

W. Scott Lewis, J.D., is a managing partner with TNG Consulting, chair of the National Association for Behavioral Intervention and Threat Assessment (NABITA) Advisory Board, and co-founder and advisory board member of the Association of Title IX Administrators (ATIXA). He also consults with and trains numerous sports organizations and governing bodies at all levels from high schools to Olympic-level athletes, trainers, coaches and staff, including working with the NCAA, NJCAA and the National Interscholastic Athletic Administrators Association (NIAAA). He is the legal counsel representative on the High School Today Publications Committee.