Tuesday, July 17, 2018

Baylor settles another case (and more)

One by one, Baylor is settling its Title IX lawsuits. Last week, the lawsuit brought by a former student (she withdrew after the college failed to respond properly to her report of gang rape) was settled with the terms remaining confidential.

[There is also news, quiet news, that the school has made agreements with three other students who did not filed lawsuits.]

This case, as I noted above, involved up to 8 football players who are alleged to have drugged and raped the victim, a female volleyball player. The victim's mother reported the rape to an assistant football coach and gave him names. After conducting his own investigation--and not reporting it to the proper people on campus (though as we know from previous lawsuits those people did not do anything anyway even when they received reports), the coach concluded that the sex acts, which the players reported as "fooling around," fell into a sexual gray area and did not pursue further action; and did not follow through with the victim.

This was a pretty clear cut case in terms of Baylor's failure to follow proper procedures. And yet...

Still it adds to the evidence about the culture of sexual violence on campus; one that, I argue, has not been sufficiently addressed even with the firing of head coach Art Briles, resignation of athletic director Ian McCaw* (who is now the AD at Liberty University), and demotion of president Kenneth Starr.

The school continues to have a revolving door of Title IX administrators. It refuses to admit it has a problem with sexual violence. It refuses to address the issue of athlete sexual violence, which is the result of lack of oversight of athletes and the athletics program. It has demonstrated that is values its male athletes over its female athletes. It has its most notable female, basketball coach Kim Mulkey, defending the school and disparaging those who spoke out against the sexual violence. But in its statement about the settlement, the university contends that the new leadership is committed to change.

And now we have the commissioner of the Big 12 contributing to the culture of denial by dancing around the issue at media days this week. 

Still awaiting Baylor: two more lawsuits against the Baptist university which involved a total of 15 plaintiffs; the results of the NCAA's (very late to the game) investigation; and the conference's "verification"--not an investigation--that BU is implementing the 100+ recommendations from the Pepper Hamilton report. (The university is being denied 25% of the revenues it would earn from being in the Big 12 until the verification process is complete.)


* The more: McCaw has been in the headlines because he was recently subpoenaed in one of the remaining lawsuits. The high and mighty tone is off-putting. He said he resigned--after he was placed on probation in 2016--because he did not want to be part of a cover-up. Except he was already part of a cover-up--because there is no way he did not know what was going on in his football program.

He said the report of findings (2016) in which the football program was deemed responsible for many of the problems of sexual violence was steeped in racism and that the regents were looking for scapegoats.

I do not doubt that there is rampant racism at Baylor, including in its athletics department; because there is rampant racism in intercollegiate sports. I do not doubt--in fact I have written about this already--that the regents are part of the problem. And it is a problem that their role has not been investigated and interrogated.

And though McCaw took some responsibility for his role, this testimony read like a shunned person seeking retribution. If there was such a problem with racism in athletics and the school in general, why wasn't McCaw working to address it? He was not the most powerful person (as he came to realize), but he could taken steps. And if he felt the whole system was so corrupt, why didn't he resign earlier? I am not sure what effect his testimony will have on the lawsuits, but it has invigorated others looking to pass the buck.

Briles's attorneys have jumped on this testimony saying that the school threw the former coach under the proverbial bus. First, he deserved to be fired for reasons too great to even list. Second, if he was surprised that he--a successful white, male DI football coach was expendable, that he could be used as a pawn to mitigate the effects of a huge scandal, then he really is not knowledgeable about the system which created and then ultimately tossed him aside. Because once in a great while even powerful white men in intercollegiate athletics are sacrificed to keep the system going. Neither Briles nor McCraw should be shocked by this; they helped perpetuate it.

Monday, July 02, 2018

Advocates Petition for Correction of 2017 Dear Colleague Letter

Several Title IX advocacy organizations have teamed up to petition the Department of Education to correct several unsupported factual assertions contained in its 2017 Dear Colleague Letter withdrawing the 2011 Dear Colleague Letter. They also argue that the 2017 Dear Colleague Letter,  thus rendered baseless, should be rescinded.  

The advocates' petition relies on federal law called the Information Quality Act which, along with related regulatory guidance, requires that information disseminated by federal agencies be useful, accurate, reliable, and unbiased. The statute does not provide for a private right of action. Instead, the mechanism for enforcement is to seek correction from the agency. 

Specifically, the advocates singled out the following statements in the 2017 Letter for being unsupported by evidence, implausible, and biased.
1.“Many schools [before the Prior Guidance] had traditionally employed a higher clear and convincing evidence standard.”

2.“Many schools had previously followed procedures reserving appeal for accused students.”

3.“As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that lack the most basic elements of fairness and due process.”

4.“As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that ... are overwhelmingly stacked against the accused.”

5. The Prior Guidance “led to the deprivation of rights for many students--both accused students denied fair process and victims denied an adequate resolution of their complaints.”

6.The Prior Guidance “has not succeeded ... in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires.” 
Some of the advocates' objection centered on the use of the vague word "many" -- which, they argue, indicates a majority of either the 100,000+ federally-funded educational institutions, or at least, most of the 7000+ institutions of higher education. In fact, the best evidence out there suggests only a handful of schools used the clear and convincing evidence standard or reserved the right to appeal for accused students. The letter also cites empirical research finding that schools more often have procedures that are stacked against complainants rather than accused.  

While many agencies--the EPA for instance--receive many requests for correction, the Department of Education does not often receive them. So past practice is no basis for predicting how seriously the agency will take this request. Still, it seems unlikely that the Department of Education would change course in any meaningful way on the basis of this petition.  The 2017 Dear Colleague Letter is supposed to be a temporary placeholder anyway, until the Department proposes new regulations. My guess is that the dispute over these "facts" is going to merge into the dispute over the basis for those newly proposed regulations. 

Still, this effort is useful, not only to administrative law professors like me, who love examples of the lesser-known requirements of regulatory process, but for its contributions to the foundation of the policy debate that is about to occur. Advocates are warning the Department that there is evidence out there that it needs to contend with as it tries to rationalize whatever new regulations it eventually proposes. And they are suggesting that vague and imprecise generalizations about supposed problems are not going to hold water when it comes time for the agency to defend those newly proposed regulations against charges that they are arbitrary and capricious. The agency is taking its time releasing the draft regulations, but advocates are not waiting to stake out some of their key positions.