Finally a win for a Title IX

 ...and a sort of validation of my earlier prediction.

Last week's multi-billion settlement (still in need of final approval by the judge and being questioned by the outgoing Justice Department) in a class action lawsuit against the NCAA prompted OCR to issue a reminder about following Title IX in regard to the provision of equal opportunities as they relate to NIL. 

The settlement includes almost $3 billion to be distributed to over 400,000 current and former athletes, will replace athletic scholarship limits with roster size limits, and requires revenue sharing with athletes, i.e., athletes will be directly paid. Some of the initial issues that formed the case (a consolidation in 2020 of several cases regarding athlete compensation that began years earlier) had been settled when the NCAA capitulated regarding athletes' ability to earn money for their name, image, and likeness. 

In the wake of what appears to be "official" approval for athlete compensation of all sorts, OCR (somewhat belatedly imo) released the fact sheet reminding stakeholders how equality is assessed under Title IX. The fact sheet entitled "Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities" lays out the mandate for equity in this new era. 

Points that struck me:

• OCR has explicitly tied the requirement for equity in publicity to NIL opportunities. 
• "A school’s obligation to provide equivalent publicity based on sex continues to apply in the context of NIL. For example, if a school is not providing equivalent coverage for women’s teams and student-athletes on its website, in its social media postings, or in its publicity materials, these student-athletes may be less likely to attract and secure NIL opportunities. In addition, if a school is publicizing student-athletes for the purposes of obtaining NIL opportunities, OCR would examine whether the school is providing equivalent publicity for male and female student athletes (including by examining the quantity and quality of publications and other promotional devices that feature the men’s and women’s athletic teams)."
• Opportunities to access NIL must be equitably supported by the institution. If colleges offer athletes training in how to get NIL deals those must be offer to men and women athletes equally. Also, any administrative support for NIL by employees must be equitably provided. So if the football team has a full-time NIL admin then a full-time admin needs to be meeting the NIL needs of the equivalent number of women athletes. 
• NIL provided by a school to athletes IS financial assistance based on athletic participation. In other words, NIL must be distributed equitably similar to scholarships and grants. 
• NIL provided by a third party does not fall under the category of financial assistance, but schools are responsible if NIL that comes from boosters, collectives, etc. create disparate effects. Alas, OCR did not offer any examples or guidance about how to address these disparities. But this section does adhere to the longstanding interpretation that the popularity of men's sports historically that draws donations from alum and boosters for things like facilities, trips, turf fields, scoreboards cannot be accepted if the school does not have a way to create an equivalent (not the same necessarily) benefit/treatment for women. I predict that this is going to be the most contentious aspect of NIL's intersection with Title IX. 

This interpretation of how Title IX applies to NIL may not last. The new administration could choose to issue new/different guidance. Blogger emerita, Erin, spoke about this to the AP. But I don't think this is going to be a top priority. Though Inside Higher Ed did a quickie piece on this and quoted Ted Cruz saying this guidance was going to be scrapped pretty quickly, so who knows. Even if it is, athletes who are not getting the benefits of NIL are going to bring these issues to courts which will create precedents schools will have to follow.

What's in store for Title IX in 2025? Part II: Dropped protections for trans students, including athletes--POST INTERRUPTED

So just as I was about to post this one, I heard the news that a federal judge had blocked the new Title IX rules (which went into effect in August). We revert back to the previous rules and see what changes will be proposed--if any--by the new administration. 

In the spring, the National Women's Law Center held a virtual forum that I found helpful as some states had won injunctions against the new rules but others were proceeding. I am hoping the group will hold something similar soon as well provide guidance on how we should all be proceeding in efforts to guarantee protections to all students. 

For now I am going to post a slightly edited version of what I had before the ruling.

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 It was pretty clear back in April when the Biden administration released its changes to Title IX that included protections based on gender identity but did not include specific protections for or guidance regarding trans athletes, that the latter were not coming. As part of the revision process, draft regulations regarding all of the above had been published and opened for public comment. I wrote about the draft guidance for trans athletes at that time. [TLDR version: I found them vague and problematic.]

In the end, it did not matter. There was no way those changes about trans athletes were going to be released ahead of the election; not when this issue has become quite the panty twister/straw dog argument (and various other metaphors which cannot even reflect how outsized an issue this has become while still doing significant harm). 

Even the changes guaranteeing protections for trans students, which went into effect in August have faced road blocks in the form of federal judges granting injunctions brought by state officials who did not want to follow the new rules. So some schools are following them and others are not.

What is to come in 2025? All these protections are going away, perhaps with a single signature. [UPDATE: this has happened based on the January 9 ruling of a federal judge in Tennessee.]

I have heard critiques of the Biden administration for failing to enact more fixed and certain protections for trans people. This is not untrue or unfair. Two things to remember. One, using Title IX to achieve some of those protections was never going to be a long-term solution. Every administration can change the guidelines and even this sympathetic administration was not going to be able to push through widespread protections because they do not have widespread support. This is one of the pitfalls of Title IX; it is subject to the social and political climate. (Yes, all laws and regulations are products of the culture of the moment; this one is easier to amend than others.)

Second, the loss of these protections are part of the larger attack on many minoritized peoples which this administration could not (or would not) stop or sometimes even address. 

Is there hope? In the immediate future...I don't think so. But see above re so many people who are and will be subject to increased violence (emotional, physical, financial) and suffering. Can effective leaders emerge and engage in a movement based on solidarity? There is a lot of myth-busting and compassion generation that needs to happen. I don't know what the tipping point is for people to realize that trans issues are women's issues are Black issues are poverty issues are immigrant issues, but unless it comes soon...

There may be pockets of hope in terms of where one lives and thus the protection offered by one's state or federal judicial district. I imagine numerous legal battles ahead (which were going to happen regardless of who won or which guidelines were enacted). There will be another legal showdown over the definitions of sex and gender and possibly conflict among institutions that offer protections working with(in) ones that do not (i.e., colleges with anti-discrimination protections and the NCAA). 

For now--and I hope to expand on this later--think about what you will do. What power do you have and how can you use it? 

What's in store for Title IX in 2025: Part I NIL

 I probably should have titled this series (whether it actually becomes a series...) what I think should happen in 2025 with Title IX because I am not a policy wonk and predictions are not my forte. 

Regardless, part I is about NIL and inspired by a National Review list (yes I am worried about how clicking on the link will affect my algorithm) of 5 wishes for higher ed in 2025. 

Number 5 on the list is keep Title IX out of "collegiate sports money." Like the rest of the list, the exact meaning of this wish is unclear, but I will interpret it here as "let it be ok that men athletes get more in NIL than women athletes." 

It could mean that Title IX should not apply to any aspect of collegiate sports budgeting, i.e. equitable distribution of money for recruiting, facilities, medical services, uniforms and equipment. And while I might have said in my head "that would be a losing battle," who the heck knows. One, most college athletics departments do some funky math and logistical gymnastics to justify their always larger men's athletics spending and 2) Sheila McMahon is slated to take over the Department of Education. 

Regardless, my wish for 2025 is that there is significant movement toward order and transparency in this NIL mess. (I am not opposed to NIL in theory, but its implementation has been nightmarish for so many stakeholders.) I hope that the plethora of lawsuits by athletes alleging lack of payment and unfulfilled promises will reveal more about the operations of NIL collectives, their connection to boosters, and their connection to athletics administrators. And perhaps the look behind the curtain will also reveal just how skewed the money flow is in favor of men's athletics. 

As a reminder, money from boosters is not an excuse for inequitable treatment. This has already been decided. A school cannot say "well the boosters paid for the spring break trip for the men's baseball team but we the institutions have no funds to provide a women's team a comparable experience/benefit." So it remains unclear to me how NIL has escaped the scrutiny. I mean I am not that obtuse; the rich are going rich anywhere they want to rich. But let's at least see this happening in real time with real effects this year. 

Remind me again who's hurting women's sports??