GLADIATHER® LAW: DEVOS & WOMEN IN SPORTS

By now most of you are aware that last week the Senate held it’s confirmation hearing for President Trump’s pick for Secretary of Education, Betsy DeVos.  By a lot of people’s standards, DeVos’ performance was cringeworthy.  She avoided agreeing to uphold federal laws that protected disabled students, supported guns in schools to protect students from grizzly bears and revealed that she wasn’t knowledgeable in basic concepts about educational standards.  She provided little clarity about the tone she would set for the Department of Education and while it’s not immediately apparent, that also means there’s little clarity about the direction of women in sports. How could DeVos and the Department of Education possibly influence women in sports? For that answer I’m bringing you another installment of GladiatHer® Law.

What affect could DeVos have on women in sports?

The Department of Education, through its Office of Civil Rights (OCR), is responsible for enforcing Title IX.  As we’ve established on other occasions, Title IX is the federal law that makes it unlawful for educational institutions receiving federal funds to discriminate against individuals based on their sex.  Title IX demands that schools provide equal opportunities for men and women to participate in sports; that men and women receive scholarships on an equally proportionate basis and that men and women have equal access to athletic benefits.  Title IX also protects against sexual violence.  It requires that schools investigate and act on claims of sexual assault and harassment from its students and faculty members.  The Secretary of Education, as the head of the Department of Education, is responsible for directing the Department’s agenda as it relates to all laws and regulations under its jurisdiction, i.e. Title IX.  Therefore, DeVos’ confirmation would essentially give her significant power over issues related to women in sports.

But how can DeVos influence much change if Title IX is already established law?

The thing about any piece of legislation (federal or local) is that it is always up for interpretation, so while the language of a law may seem pretty straight forward its enforcement usually is anything but.  The breadth of a law’s reach is determined by the courts or officials with the authority to interpret the law.  For instance, under President Obama’s administration, the Department of Education issued the Dear Colleague Letter which established that Title IX required the protection of students and faculty against sexual violence.  The Letter also extended Title IX protection to members of the LGBT community. This extension of Title IX is not based in clearly established law, but on the administration’s liberal understanding of Congressional intent and language.  Just as easily as former Secretary Arne Duncan oversaw the expansion of Title IX; DeVos could direct and oversee its constriction and usher in a more limited view of the reach of Title IX.

Similarly, Secretaries dictate policy changes through budget allocation.  DeVos could easily decide that supporting Title IX protections is not of high priority.  She could in turn limit funds provided to OCR for research and investigations which in the past have led to increased standards of review and investigations on college campuses.

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So what’s the potential harm on women in sports?

If DeVos is confirmed and IF she takes a conservative, narrow interpretation of Title IX and the Department’s role in enforcing it, that could mean fewer Federal protections for women in sports. It could mean that (without the threat of interference from the Department) schools become less vigilant in protecting against sexual assaults on college campuses and less concerned with women’s sports programs. That stance isn’t so far fetched considering that last year alone colleges and universities paid millions of dollars to women for administrators’ failures to properly investigate and act on claims of sexual assaults and that claims of unequal access to sports continue to roll in. It’s sad that in the 21st century, institutions still refuse to acknowledge and take responsibility for the magnitude of sexual assaults on and around their campuses; that they need to be policed by the federal government before they protect people from sexual violence–but such is the state of American culture. So a DeVos administration has the potential to undo the progress ushered in by the Dear Colleague Letter and set Title IX and women in sports back at least eight years.

It is possible, however, that DeVos could have a liberal outlook on Title IX or just go with the status quo of the Obama administration.  It’s possible…but her track record in Michigan says that’s highly unlikely.  It’s also possible that the liberal interpretations, complaints, lawsuits, press conferences and blog posts over the past several years have had an impact on how we view women in sports. It is possible that a reeling in of Title IX would have no effect at all because elementary, middle and high schools, colleges and universities have been thoroughly convinced (regardless of Federal law) that protecting and encouraging access to sports for women and protecting women from sexual harassment and violence is just…the right thing, the best thing to do.

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So what can we do if we learn that the world hasn’t changed that much in eight years and DeVos shreds up Title IX?

Although Title IX and the Department of Education are keys for women in sports, they aren’t the only protections or courses of action.  Outside of the Department, Title IX allows individuals to use Federal District courts to enforce the statute.  A victim of sexual harassment or violence has the right to file a private lawsuit against a school if he/she believes that the school has failed to uphold its duty under Title IX or if he/she is unsatisfied with the outcome of an OCR investigation.  To that end, victims of sexual harassment and violence may also continue to turn to state courts and law enforcement agencies for protection.

But progress can also be made outside of Title IX itself.  If the numbers of women and men who participated in Saturday’s Women’s March on Washington in DC and around the world prove anything it’s that there is massive global support for equality and justice for women.  Building off of that affirmation and momentum, supporters of women in sports and advocates for protection from sexual predators can pressure their local and state government officials to enact laws that echo the protections afforded women and men through the Dear Colleague Letter.  Heck, we can actually elect officials who put those types of laws and policies in place.  We can pressure school administrators to fully fund women’s sports and to implement zero tolerance policies for sexual harassment and violence.  We can make concerted efforts to attend and watch women’s sports events, increasing revenue in the face of individuals who say there’s no money in women’s sports.  And from the comfort of our own homes we can have open dialogue that is uplifting of a movement that is inclusive and respectful of all.  If everyone who says they are supportive of women in sports and women’s rights just does something…just one of those things to push the movement forward; it won’t matter whether or not DeVos or President Trump give Title IX their stamps of approve, because we won’t need them.

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