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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.


Does athletic culture contribute to higher rates of sexual assault and substance abuse?

Recent headlines regarding sexual assault and domestic abuse again have brought player behavior in professional and intercollegiate sports to the fore. With the suspension of Ray Rice of the NFL for viciously punching his wife and Jameis Winston in trouble for misogynistic behavior (earlier this year we commented on his sexual asault investigation), the larger question is whether the celebrity status of athletes condones a secret and shameful culture permissive of sexual assault and abuse?

Research has established that substance abuse (namely alcohol) contributes to higher rates of sexual assault. Additionally, research has established a trend of high drinking rates among student-athletes, and media stories like the ones above have illuminated a culture of sexual abuse and assault that is more prevalant among athletes than the public at-large. With this, I wonder if on college campuses with a strong "athletic culture" are there higher rates of substance abuse and sexual assault among the student body?

In a nascent research project, I am examining Clery data related to substance abuse and sexual assault among institutions classified at the highest tier, Football Bowl Subdivision, and the less competitive Football Championship Subdivision. To operationalize "athletic culture" I will rank institutions according to the ratio of money spent on athletics versus academics. (The Wall Street Journal recently did its own analysis of college football spending.) Along with other factors, I hope to establish that on campuses that strongly support athletics in relation to academics, this culture spills over to the general student body. I will be presenting my preliminary findings at the Education Law Association's annual meeting in November. I look forward to your feedback.


Columbia University Issues Revised Sexual Harassment Guidelines: Students Excluded From Hearing Panels

Columbia University recently issued revised gender-based misconduct policies applicable to students. A link to the revised policies is available here. An aspect of the revised policies especially of note is that student conduct hearing panels will typically be composed only of specially trained university employees, specifically student affairs administrators. In addition, the policy states that, times, individuals with special skills and knowledge such as attorneys or retired judges may be included on panels. As colleges and universities wrestle with Title IX compliance, an issue that has arisen is the composition of hearing panels that adjudicate student-on-student sexual harassment claims. In particular, questions have arisen regarding the extent to which students should participate on such panels as hearing officers. Columbia has moved away from having students as a part of these student conduct panels. Given the pressure to ensure conformity with Title IX requirements, the decision to exclude students as officers on hearing panels dealing with sexual harassment claims may well be followed by other colleges and universities.


Kent State Charged With Violating Fair Housing Act For Refusing Student Emotional Support Animal In Campus Housing

In previous posts (available here and here), I'd written about legal developments related to college and university student housing and emotional support animals. Specifically, the federal government, through involvement in litigation and in the issuance of guidance, has furthered the position that student housing at postsecondary institutions is subject to the Fair Housing Act (FHA), in addition to the requirements of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The FHA, along with use of animals for physical support, also provides for the use of animals for emotional support to help alleviate the symptoms of a disability. The FHA does not require that such animals must be certified or licensed, as is the case for service animals under the ADA. As reported in the Chronicle of Higher Education (available here), the U.S. Department of Housing and Urban Development recently charged Kent State University and four of the university's employees with violating the FHA for prohibiting a student from keeping an emotional support dog in a campus apartment. The actions indicate a continued push by the Department to make colleges and universities conform to the FHA in the context of institutionally controlled student housing.


Boise State's Trademark Blues

I have written on this blog, and in Harvard’s Journal of Law & Technology, about the phenomenon I have dubbed “trademark rights accretion in higher education.” Simply stated, colleges and universities are amassing large portfolios of federally registered trademarks, often of questionable value or necessity to the institution. While the response in some quarters to this trend has been “so what?”, I argue that amassing trademarks is different than amassing office supplies. Each registration confers an exclusive right that encumbers a word, symbol, or phrase that other for-profit and non-profit entities may have a legitimate interest or need to use (for more on these chilling effects, see here). Trademark registrations inescapably are commercial tools, and thus ownership of them drag colleges and universities into more questions of which pieces of intellectual property they should enforce, against whom, and at what cost.

A recent article by Michelle Gallagher in the Trademark Reporter adds yet another cautionary story to this emergent narrative [a link to download her article is available at this blog]. She begins her article by examining in detail the trademark doctrines that permit applicants to register color alone as a federal trademark. Think, for example, of the distinct shade of blue used on boxes of jewelry sold by Tiffany & Co. Tiffany does not own that eggshell-blue color outright, and could not prevent a manufacturer of bird seed from using it on its packaging. Tiffany does enjoy certain rights in the color’s use, however, and thus could prevent a competing jewelry store from using the color on its packaging. In trademark parlance, trademark rights in the color are possible because it is “non-functional” – that is to say, there is no competitive need to use the color on jewelry packaging (unlike, say, the color orange on a road barrier), and permitting Tiffany exclusive rights in the color for that use does not put competitors at what courts call ‘a significant, non-reputation-related disadvantage.’

Ms. Gallagher analyzes whether the same could be said of U.S. Trademark Reg. No. 3,707,623, owned by Boise State University for “the color blue” as used on artificial turf in stadiums in connection with “entertainment services, namely the presentation of intercollegiate sporting events and sports exhibitions rendered through a stadium, and through the media of radio and television broadcasts and the global communications network.” Boise State has owned this trademark registration since November 10, 2009. Turf on the university’s football field at Albertsons Stadium has been blue since 1986.

Ms. Gallagher’s engaging article raises several concerns about Boise State’s trademark registration that bear on the uses and abuses of intellectual property in higher education. Those concerns are (1) that the university’s trademark registration is invalid because the claimed trademark is functional, which “allows Boise State to control and curtail legitimate competition” (p. 799); (2) that the university’s aggressive yet unregulated licensing of its trademark to other colleges and universities has led to the university’s effective abandonment of its rights in the mark; and (3) that the university’s position concerning the breadth of its rights in the trademark is unfounded and injurious to the public good. Elaboration on each of these points follows:

First, the color blue as used on football fields was not an arbitrary choice for Boise State, but instead was driven by the color’s functional attributes. Ms. Gallagher presents evidence that suggests that television viewers find blue an attractive color for viewing sports broadcasts. Indeed, promoters responsible for the U.S. Open and Australian Open tennis tournaments chose to use blue as the primary color on those playing surfaces because of the color’s telegenic benefits. Additionally, Boise State’s trademark registration effectively depletes the stock of available colors that other colleges and universities could use on their playing fields. Despite Boise State’s contention that the color blue has become synonymous with Boise State, as Ms. Gallagher notes, “it is probably safe to say that fans of Notre Dame, Penn State, University of Michigan, and other schools that use blue in their color schemes would disagree” (p. 799). For these reasons, she argues, the mark is functional and should never have received federal trademark protection.

Second, Boise State arguably has lost or risks losing its rights in its trademark because of its licensing practices. The university takes the bold position that any college, university, or high school wishing to use a colored field, of any color other than green, is only permitted to do so via a trademark license from Boise State, which the university issues for free. The standard license has no quality control provisions, and in fact states that users/licensees of the non-green-colored fields should do nothing to suggest an affiliation or endorsement by Boise State. This type of no-strings-attached license is known to trademark lawyers as an uncontrolled or “naked” license. Naked licenses destroy the value of the brand, and ultimately destroy trademark rights, as the mark owner cannot have it both ways: a trademark owner cannot demand that a commercial user take a license to the mark while simultaneously stating that the licensee’s use of the mark does not impact or inure to the benefit of the mark owner.

Third, and most problematic from a policy perspective, Boise State has taken an expansive and unfounded approach to licensing its trademark. Even though its registration only covers intercollegiate athletics, to date, Boise State has entered into licenses with 17 high schools and elementary schools with blue- or navy-colored fields in locations across the country, including in Barrow, Alaska (which is not connected by roads to any other town in Alaska). Additionally, even though Boise State’s registration only covers the color blue, the university has used it to demand licenses from any college or university using a non-green field (over 30 in all), and has even requested that turf manufacturers tell their clients to contact Boise State should they consider purchasing non-green colored turf for a new stadium for any sport. As Ms. Gallagher forcefully argues, “imbuing an exclusive proprietary interest in all color (besides green) on school playing fields, and denying other schools the right to use any color (besides green) on their sports fields without a license from Boise State is an inappropriate extension of trademark law” (pp. 807-808).

The silly and harmful practices by Boise State University that Ms. Gallagher’s article brings to light help illustrate the problems that come with trademark rights accretion in higher education. Trademark registrations – which colleges and universities should only obtain to protect core aspects of their identities – are powerful commercial tools that not every institution of higher education is prepared to wield in a manner that is consistent with the public interest. Registrations have a tendency to beget enforcement, often pursued as a matter of injudicious opportunity rather than reluctant necessity driven by the presence of actual confusion and market harm.

As Ms. Gallagher rightfully notes in concluding her article, “university colors should be recognized as conduits of school spirit shared by many, and the standards for protection of such colors as intellectual property must be viewed in such context” (p. 810). I would add that exclusive rights can hurt the public when the rights granted are inappropriately expansive, or when the public-serving entity that holds appropriately granted rights is not sure how to use them in furtherance of the public good. The solution for colleges and universities wishing to avoid these pitfalls and temptations is to not seek trademark protection over every associational aspect of the institution, particularly names, devices, and colors in common use by, or of common need to, others in higher education.


This week's legal developments related to intercollegiate athletics

Though student-athletes are spending their summer break in classes or off-season drills, the courts are still in season as it relates to intercollegiate athletics. Two major developments have occurred this week that are worthy of note:

1. On Monday I was surprised to read an article from Inside Higher Ed reporting that a basketball player dismissed from two other institutions for allegations of sexual assault has been awarded an athletic scholarship by a Florida college. (The article also reminded us that many institutions allow athletics departments, and not the campus student conduct office, to handle sexual assault investigations involving student-athletes.) The basketball coach at the Florida college is quoted as saying that the institution has the "experience, support, and resources" to help this student-athlete be successful in and out of the classroom. Though I do not know much about this institution, nor its resources and "experience", I do contend that this symbolically reinforces the culture within some (not all) institutions that garnering a prize recruit is more valuable than seriously addressing sexual assault and hostile environments on their campus.

When I was a graduate student, I wrote and published a paper regarding potential liability institutions could face for the sexual crimes of student-athletes that were recruited despite lengthy criminal records. My interest in the topic was sparked when I learned of a case that occurred at the University of Georgia prior to my arrival as a student. Tiffany Williams, a female student at UGA, was raped by three student-athletes--one of whom had been dismissed from two other institutions amid allegations of sexual misconduct. In Williams v. Board of Regents of the University System of Georgia, the 11th Circuit allowed Ms. Williams to pursue claims not just against the university for its untimely response but also against the coaches, president, and athletic director. That case was settled out of court.

Similar instances happened at the University of Colorado and Oklahoma State University, to name a few. With the increased enforcement of Title IX and the enactment of the Campus SAVE Act, I think institutions need to look at how the issue of sexual assault is addressed not just among the student body but also within the athletics department. I applaud Florida State University's president Garnett Stokes for supporting the hiring of three full-time staff members to handle sexual assault cases and to work toward eliminating a hostile climate at FSU. (FSU received much criticism for its handling of the investigation into sexual assault charges against Heisman winner Jameis Winston.)

2. On Tuesday the NCAA announced a proposed settlement in a class-action lawsuit brough by former student-athletes who had suffered head injuries. $70 million will be spent on testing and diagnosis and $5 million will be used toward research. This settlement is somewhat different than the one the NFL entered into in September, which we reported on here.