In the modern sports law environment, the challenge for school and athletic administrators of complying with all of the duties imposed on the operation of interscholastic athletics programs by federal and state court case rulings (common law), legislation, administrative agency regulations, state association rules, and other legal pronouncements lies in planning and implementing strategies to address the overwhelmingly complex and often bewildering regulatory framework that has evolved in recent years to govern education-based athletics.
Those on the ”front lines” of compliance – athletic directors, coaches and athletic trainers – are constantly in search of straightforward, logistically-reasonable and financially-affordable steps that can be taken to both better safeguard the health and well-being of student-athletes and at the same time reduce liability for athletic personnel.
The following, listed in no particular order of importance, are 10 simple steps that could be taken in pursuit of a safer environment for athletes that will also have the ancillary benefit of minimizing legal exposure for school and sports personnel.
1. Locker Room Supervision
As is reflected in the court cases and administrative agency complaints filed each year, unsupervised or inadequately supervised locker rooms have become “ground zero” for a disproportionately high percentage of the physical injuries and other forms of harm suffered by student-athletes. Hazing incidents such as the “brooming” recently reported at Damascus High School (Maryland), where a football team initiation ritual allegedly involved sodomy against underclassmen by upperclassmen using a broomstick in an unsupervised locker room, typically occur in locations where the perpetrators have isolated the victims from the adults charged with the responsibility of supervising and protecting them, most commonly in locker rooms, but also in shower rooms, weight rooms, hotel rooms on road trips, private homes during team events, and in the back of buses while returning from away-games.
Fights in unsupervised or inadequately supervised locker rooms, such as that which resulted in a $106,000 jury award in Cross v. Woods County Schools (West Virginia) in 2014, when a coach’s response was to allegedly encourage the physical altercation, are frequently the subject of litigation. Sexual harassment and sexual abuse incidents often take place in unsupervised locker rooms, as does bullying and mistreatment of students with motor skill and learning disabilities. Certainly the time demands on coaches and other logistical impediments create obstacles to ensuring that locker rooms are always supervised in a manner so that an adult can instantly respond to any incident that occurs, but no single strategy could be employed by athletic programs to more effectively improve safety and reduce legal exposure.
2. Update Student-Athlete Codes of Conduct
Because of the broad principle that athletic participation is a privilege, not a constitutionally-protected property right, the due process required for student-athletes is generally limited to defining with specificity in codes of conduct all prohibited behaviors and the specific sanctions related thereto. In 2017, in Vega v. North Canton City School District (Ohio), the court upheld the full-season suspension of a football player for possession of an e-cigarette because the tobacco provisions in the chemical abuse section of the student-athlete code of conduct specifically included e-cigs, vaping and juuling, along with clear delineation of the sanctions for policy violations.
A social media policy, although not an infallible defense against an allegation by a student of a free speech violation, is more likely to withstand judicial scrutiny if it is highly detailed in its exposition of banned postings by students, especially if the prohibitions listed therein comport with established First Amendment principles related to student free speech.
In summary, revising a student-athlete code of conduct to define with as much specificity as possible all banned behaviors and violation sanctions, being sure to avoid subjective, overly-generalized, morals clause type prohibitions, will increase the likelihood of the code being upheld by a court.
3. Monitor Revisions to State Laws and Association Regulations
State laws and state association regulations are constantly being updated. In 2018, in response to the death two years earlier of a fraternity pledge at Penn State University, the legislature in Pennsylvania substantively amended the state’s anti-hazing law. The newly enacted statute not only enhances the criminal penalties for violation of the law, but also incorporates numerous new mandates for K-12 schools with regard to preventing hazing (fulltext at www.legis.state.pa.us). Also in 2018, the Illinois legislature added significant new requirements to its state concussion protocol law (full-text).
It is incumbent upon athletic directors, coaches and athletic trainers to constantly monitor all of the sources of so called “black letter law” – state laws and state association rules directly related to their job duties. Violations of clear-cut laws, rules and regulations often invoke the judicial doctrine of negligence per se through which courts find disregard of the black letter law to be defacto evidence of a lack of reasonable care. Presumably, athletic directors, coaches and athletic trainers will gather sufficient information about such mandates through the process of attending professional development conferences and seminars sponsored by state associations and professional organizations.
4. Reasonable and Safe Discipline for Student-Athletes
Although the number of court cases involving allegations regarding the use by coaches of foreseeably dangerous disciplinary techniques on student-athletes appears relatively low given the nearly eight million high school student-athletes competing in close to 20,000 high schools, district and athletic administrators must carefully select, train and monitor coaches to ensure that they understand the appropriate values related to education-based athletics and do not cross the line to implementing unreasonable or excessive forms of punishment of athletes.
Several dozen lawsuits nationwide are filed every year involving egregious conduct related to the discipline of student-athletes. In 2018, in Robinson v. Polk County Public Schools (FL), a $125,000 jury award was given to a high school football player whose coach had repeatedly disciplined him by violently twisting his nipples, eventually resulting in permanent disfigurement of his left side. In a landmark case from 2005 involving excessive punishment of student- athletes, Gorthy v. Clovis USD (California), a football player who was late to practice was punished by being forced to do “bear crawls” on hot asphalt on a 95-degree day, resulting in second-andthird- degree burns on his chest, arms, hands and legs, injuries requiring skin graft operations to remedy.
5. Preventative Measures Against Hazing and Sexual Harassment
School and athletics administrators must ensure that hazing, bullying and sexual harassment policies are substantive, include in those policies language specifically defining prohibited conduct, set forth reporting procedures identifying the district’s federally- mandated Title IX Compliance Coordinator, define strategies for educating coaches, student-athletes and parents on the topic, and include the athletic program’s plan for monitoring all teams to ensure that only appropriate team-building and character-development activities consistent with the values of education-based sports are being used.
Both the NFHS and NIAAA have resources available to assist in the education process for all constituents, including free online courses such as Hazing Prevention for Students, Bullying, Hazing, & Inappropriate Behaviors, and Protecting Students from Abuse and a DVD titled Hazing Education.
6. Strict Adherence to Child Abuse Reporting Laws
School and athletics administrators must ensure that all athletics personnel are familiar with their roles as mandatory reporters and the state’s specific requirements regarding the circumstances under which the duty to report is triggered, including details regarding how and to whom a report is to be filed.
7. Title IX Self-Audit and Proactive Compliance Measures
A proactive approach to Title IX compliance in terms of inequities arising between girls and boys athletics teams will allow a school to maintain a greater degree of control over the process of correcting inequities in a way that is logistically and financially consistent with the school’s long-term interests. In some cases a district might choose to retain a law firm or outside consultant to conduct a Title IX audit, an approach used by the Dexter Community School District (Michigan) whose board in 2018 demonstrated exceptional leadership by having the district’s outside counsel conduct a review mirroring the analytical approach that would have been used by the U.S. Department of Education’s Office for Civil Rights during a formal Title IX investigation, a strategy that will allow the Dexter schools to implement numerous improvements to its athletics programs on behalf of the girls who participate without having to actually have the OCR actively involved in the process. In other cases, a district might choose to have its athletic director conduct a Title IX Self-Audit using the content of the NIAAA Leadership Training Course 506 and the materials provided during that class, which includes a complete set of self-audit paperwork.
8. Eliminate Potentially Discriminatory Policies
School and athletics personnel would be well-advised to avoid implementing any behavioral standards, dress codes, grooming requirements, hairstyle mandates or other requirements that will have a disparate impact based on protected class status such as race, ethnicity, religion or gender. In recent years, schools nationwide have eliminated superfluous, non-safety-based mandates with discriminatory impacts on student athletes. For instance, in December 2018, national media attention came to bear on the case of Andrew Johnson, a Buena Regional High School (New Jersey) wrestler whose dreadlocks were forcibly sheared as a condition of his participation in a match, a measure universally condemned afterwards because the head covering he had worn in all of his previous matches had been judged to comply with the rule requiring such coverings to fit “snug.”
9. Obligations to Pregnant and Parenting Students
Long gone is the era when a pregnant student or student-athlete was automatically reassigned to an alternative school for the duration of her pregnancy. However, many schools still impose requirements on pregnant students and student-athletes who violate federal regulations, including the mandates of Title IX. In 2013, the U.S. Department of Education’s Office for Civil Rights issued a policy guidance setting forth the precise obligations of schools and athletic programs to pregnant and parenting students and student-athletes (full-text) and an accompanying two-page summary.
School and athletics administrators should review both publications to ensure that, even when they believe they are implementing non-discriminatory measures that are in the best interests of pregnant students and student-athletes, those requirements comport with federal law.
10. In-Service Education for Athletics Personnel
School and athletics administrators must ensure that all athletic personnel – athletic directors, coaches, assistant coaches, non-teacher coaches, volunteer coaches, athletic trainers, and other personnel involved in a school’s sports program – have an understanding of the duties and basic legal mandates with which they must comply, including liability for sports injury issues, the constitutional rights of student-athletes, Title IX compliance standards, hazing policies and laws, concussion protocols, sexual harassment policies and legal standards, state child abuse reporting mandates, disability law basics relevant to student-athletes, and other legal pronouncements related to the individual’s participation in the school’s athletic program.
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.