Thursday, May 15, 2014

Oregon's Response to Sexual Assault Draws Complaint on Behalf of Suspended Students

A former city counselor in Eugene, Oregon  has filed a complaint with the Department of Education's Office for Civil Rights, alleging that the University of Oregon's decision to suspend three male students and kick them off the basketball team violated their rights under Title IX.  In March, a female student alleged that she was sexually assaulted by the three basketball players, twice at an off-campus party and then later in an apartment shared by two of them.  The local police investigated, and ultimately did not bring criminal charges against the players because there was insufficient evidence to establish the absence of consent, which for criminal purposes must be proven beyond reasonable doubt. The university, however, which operates under the lower burden of proof that is applied to non-criminal matters, suspended the students and, in response to student protest, separated them from the basketball team (albeit after two of the three competed in post-season play while the police investigation was pending).

Now, a defender of the accused -- Eugene resident Kevin Hornbuckle -- is arguing that the university is engaged in sex discrimination against male students in general and against the three basketball players in particular.  The complaint accuses the university of impugning their reputation and creating a climate of fear and hostility toward men. 

My prediction is that this complaint will not lead to an investigation.  Since the university is required apply a more balanced standard of proof, it is defensible for it to determine that the players were responsible even though police did not find overwhelming evidence against them that is necessary for criminal prosecution.  The resulting damage to the players' reputations, which the complainant alleges, does not seem to me actionable under Title IX since it does not seem plausibly motivated by hostility based on the players' male sex.  

In fact, Oregon may have more to worry about in the possibility of a complaint alleging that they did not do enough in this case to protect the victims and other potential victims. In particular, the university's failure to suspend the players sooner has drawn criticism.  The victim's father reported the assault to campus officials the morning after the incident (March 7), but the University waited until the police report was complete (April 30) before suspending the players -- allowing the players to compete in the NCAA tournament.  This contravenes a clear directive from OCR that universities must respond promptly to reports of assault, and not wait on local law enforcement. It has also come to light that one of the players had allegedly assaulted a female student at Providence College prior to transferring to Oregon. Oregon coaches deny knowing this when they recruited him, but if it turns out that there is a reason why they should have known, that could also warrant a Title IX enforcement action by OCR.

UPDATE: I just read that, in fact, Oregon is facing a complaint for not having properly responded to the victim's report of sexual assault.  OU Psychology Professor Jennifer Freyd alleges that the university violated the Clery Act when the campus police failed to log the call it received from the victim's father reporting the assault the day after it happened. Freyd also alleges that the university violated the law a second time when it failed to issue a campus-wide alert that they had received a sexual assault report and that one of the players was a repeat offender.