Considerations Before Suspending an Athlete from Practice or Game

In 2020, the first Trump administration passed a series of new regulations regarding Title IX. Most were procedural issues that are more important to your district’s Title IX team (investigators and coordinators) than to you, but some other provisions have implications that reach beyond that scope and have a definitive impact on athletics directors and coaches in their day-to-day operations and decision-making.

First, it helps to understand that a regulation (like these – often referred to in Title IX circles as “the 2020 Regs”) carry the weight of law, unlike “guidance” or “executive orders,” the first of which is just that – guidance – and the latter, which is a memo to the executive branch of the federal government. But neither of those are laws. Also, know that how the Courts interpret the regs (and the guidance or executive orders) matters as well.

The 2020 Regs included an Emergency Removal provision that states that in order to remove a student from any educational program – including (and some would say especially) an athletics program, the student must undergo an assessment that determines that they are an imminent risk to the physical safety of the community or an individual. This is a very high bar.

In other words, if a student-athlete is under investigation for any of the following offenses:

• Sexual Assault/Rape

• Sexual Assault/Fondling

• Domestic/Dating Violence

• Sexual Harassment

• Stalking

• Quid Pro Quo

• Retaliation

Then a school/athletic director/coach can NOT suspend them from practice or games or even team meetings without that risk assessment. And athletic directors and coaches should NOT be the ones performing these assessments. They are likely not trained and have a conflict of interest. It is different if the student is found responsible for the alleged policy violation – then they can be sanctioned to suspension or removal from the team or program.

So functionally, what does this look like? It looks like this:

A student is accused by someone of one of the listed offenses. The person accusing them (called the complainant) agrees to allow the investigation process to go forward. (NOTE: there are a few narrow circumstances where an investigation can go forward without the complainant’s permission.) The student who is accused (called the respondent) and their parents or guardians are notified about the investigation. An investigator is appointed and the process begins.

Sometimes during this process, no contact orders are put in place during the investigation. The Title IX coordinator may reach out to an athletic department to find out how best to implement these no-contact orders when the case involves athletes. During this investigation, the athlete who is the respondent cannot be restricted from team meetings, practices, workouts or games during the investigation without the violence risk assessment that shows that the respondent poses that immediate risk. And even if the assessment comes back and shows that the risk is imminent, the respondent must be permitted to immediately appeal the assessment. All that to say, this process has to be done quickly and is not likely to result in a finding of imminent risk.

An example: Student A says that Student B is physically abusing them in their dating relationship, but that the last time there was an altercation was a week ago. Absent a pending active threat made by Student B (e.g., a very recent text message stating that harm is imminent), Student B is not likely to cross the threshold for imminent risk and thus, even though there may be evidence, a concurrent criminal investigation, etc. Student B remains a full participant on the team during the investigation.

What else does this mean functionally?

If you are reading this and thinking to yourself, “Wait? So, I could suspend them for other violations? Like missing meetings, practices, class, fighting, stealing, drinking, etc. but NOT for these serious allegations?” Yes, that is correct. But what if the other alleged violations are attached to the more serious Title IX allegation? Say the alleged sexual assault occurred while they were drinking underage?

Can I suspend them for the drinking? No, because the allegations are connected, the Title IX regulations apply. Can I suspend them for violating a team or athletics department rule about dating or partying or a travel rule? Not if the allegation is attached to the Title IX allegation.

This creates a difficult quandary for districts, athletics directors and coaches, but it is the law. Here are some tips on what to do in these different circumstances!

You are sent an email by the Title IX coordinator that says that an athlete is under investigation.

Do NOT investigate, call in either athlete (complainant or respondent – or witnesses) and ask ANY questions. Contact the Title IX coordinator and ask them what they need from you if anything.

You hear from an athlete that they got a No Contact Directive/ Order from the school/district about another student and they are unsure what to do.

Do NOT investigate! Do NOT ask ANY questions as to why they got that email or letter. Direct them to the person who sent it and then contact the Title IX coordinator (or whoever sent the email) and ask them what they need from you. If it involves two athletes on the same team, the coordinator may need to better understand the limitations that come with meetings, practices, travel and games.

You hear a rumor that Student A accused Student B of something serious.

Do NOT investigate, call in either athlete (potential complainant or respondent – or witnesses) and ask ANY questions. Contact the Title IX coordinator or Student Conduct office, and tell them what you heard and ask them what they need from you if anything.

You learn that a team member broke curfew while on a trip to go out to a party. There are no other allegations, but the district/department/team rules are clear: if you break curfew, you are suspended from the team for two games.

Follow your district/department/team rules and procedures. But if during the process, you learn that any of the Title IX policies are implicated, stop and contact the Title IX coordinator immediately.

Finally, these provisions only apply when the student is the Respondent. If an employee is alleged to have violated policy, the HR or CBA provisions are in effect as usual. There are also some nuanced jurisdictional considerations regarding location, participation, etc. that your Title IX coordinator has to take into consideration, but the long and the short of it is that you should consult with them before taking any action at all.

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. He can be reached at scott.lewis@tngconsulting.com.