Tuesday, November 04, 2014

Alcorn State Football Player Remains Eligible Despite Prior Sex Offense

Inside Higher Education reported today about the controversy surrounding football player Jamil Cooks who was recruited by Alcorn State after committing sexual assault at his prior institution, the Air Force Academy.  This week the NCAA confirmed that his eligibility to play for Alcorn State is not affected by his status as a sex offender and that the association leaves it up to individual institutions to make decisions about whether to admit a student with a criminal record.

When the reporter for this story asked me about possible Title IX implications for Alcorn State, I immediately thought about Williams v. University of Georgia, a case in which a student who was gang-raped by a group of student athletes sued the school under Title IX.  A federal appellate court agreed that she had a strong enough case to make it to trial, since it was possible for a jury to conclude that the university met the standard for liability, which consists of notice and deliberate indifference. The plaintiff argued that the institution was on notice of the threat posed by one of the players who was recruited after had been dismissed from his prior institution for sexual assault.  

Alcorn State would appear to be on notice of a similar threat; after all, as noted by Inside Higher Education, about 90 percent of campus sexual assaults are committed by repeat offenders.  If Cooks re-offends at Alcorn State, the institution would certainly face a lawsuit in which the victim would argue that Alcorn State is liable for damages for having recruiting a known sex offender and not taking any precautions to ensure the safety of other students. The only thing that would save Alcorn State from a hefty damages award or settlement (University of Georgia paid a six-figure settlement) would be if it could somehow convince the court that its officials did not act with deliberate indifference towards the risk, like maybe if they subjected Cooks to supervision, or made him take sexual assault training, or had him on some probationary status. Such precautions would not necessarily be sufficient, but if, as I suspect, Alcorn State is not taking any steps to address the risk Cooks poses to others, keeping him on the team is -- as I said to the reporter -- a "ticking time bomb" of Title IX liability.