New rule: No passing around bad coaches

Art Briles, former Baylor head coach, dismissed as part of the house cleaning (that was largely a PR move) in the wake of the sexual assault scandal (see Baylor tag for more details if you are not familiar or this ESPN timeline) got a job! He was hired in February as the offensive coordinator for Grambling State University, an HBCU in Louisiana. Briles has been away from college coaching for six years now.* 

And he will continue that streak because he stepped down from that position after significant backlash in the wake of his hiring. He lasted three days; which is two and a half days longer than his stint with the Hamilton Tiger-Cats of the Canadian Football League in 2017. 

I find it heartening when people push back strongly enough to prevent those who should not be given "second chances" from getting jobs in which they can continue to do damage. I find it disheartening that 1) institutions still offer these jobs in the first place and 2) that these decisions also receive praise (see this article that details communication to and from Grambling folks after the announcement of the hiring).

Grambling State did not have to walk back the offer because Briles officially resigned. But apparently learning nothing from this incident, they turned right around and offered the job to John Simon, who had previously coached at University of Memphis. Simons left the Memphis staff weeks after being placed on administrative leave in 2021 in the wake of a Title IX and sexual assault complaint. Grambling head coach Hue Jackson had already brought on Simon has an assistant coach, but elevated him to offensive coordinator when Briles resigned. 

It is not a done deal. however, because Simon needs to be approved by the University of Louisiana System board at their April meeting. A spokesperson for the UL board said it was not a rubber-stamping organization and that it would scrutinize the candidate. The UL system, however, is not a shining example of how to handle Title IX issues, so I suspect that they will come out with something like "he denies all allegations against him and was never criminally charged, so he's in!" 

This situation at Grambling demonstrates, to me, the need for some rules regulating the hiring process of collegiate coaches. The system, for all coaches--not just football, is so steeped in all the inequities that is is hard to know where to start. 

My suggestion: don't hire coaches with histories of Title IX and interpersonal violence complaints. The SEC and other conferences and/or schools have this policy as it pertains to athletes,** so why not coaches? As we approach the 50th anniversary of Title IX's passage, I have been thinking more and more about how to improve on the law's application; what other ways can it be used to ensure equity. This seems like an easy one. 

* He has coached at the high school level though. This is a somewhat tangential, but quite fascinating, article about his first season at Mount Vernon High School in Texas. 

** Rumor has it that the NCAA is looking to implement a policy where ALL intercollegiate athletes have to be vetted for violent crimes, including interpersonal violence and sexual assault. I hope to find out more about this and post about it soon. 

Baylor update

I won't bury the lede here: Art Briles has a coaching job.

Though to be fair he actually is already coaching. He has a job in Italy as head coach of Florence’s Italian Football League team. (I am pretty sure they mean American football and not soccer. It must get very confusing when he tells any non-American what he does and where he is doing it.)

I am not sure what the Italian Football League is, who plays in it, what level of football it is. I am not sure how or when he got this job. I am not sure how much it all matters because Briles is coming back to the US--back to Texas in fact, where he will coach high school football.

High school football.

In Texas.

Art Briles.

The Mt Vernon school board unanimously approved him. They must think it is a coup. Or that enough time has passed. I don't know. I am still in shock that people (as in more than one person) thinks it is ok for the man who assisted in the cover-up of sexual assault by his own players should have a job coaching teenagers. [Former Baylor quarterback Robert Griffin III is supporting Briles's "second chance."] Some will say this is the start of his climb back up the ladder. I will ask: why wasn't that ladder burned down?

[EDIT: I see that I missed this article from March about the job in Italy. There are two former Baylor players on that team and they continue to support Briles who continues to say he knew of no criminal activity committed by his players. Briles's comment to the reporter about the Baylor scandal: "Do I think it'll ever go away? Gosh, I hope. Of course, I don't know. I spend a lot of time in the present."]

When Briles had a head coaching job for about two second with a pro team in Canada, someone realized the problem with that and took it away. But that was Canada, and this is Texas. From what my students who watch Friday Night Tykes tell me, Texas football (at least as it is portrayed on this "reality show") is equivalent to child abuse. So there is a "logic" one might argue in Art Briles getting this particular job.

And it might be important to note that Briles has coached high school before; in Stephenville, Texas in the 1990s. One of his players was accused of raping a female student there. The girl's father reported it to Briles who said said he didn't know what the father wanted him to do about it, calling it a "he said/she said" case. Not much seems to have changed. 

In other Baylor news:

Lawyers representing 15 women are trying to get the law firm Pepper Hamilton to release their report on the scandal. Previously, many believed that the board of regents at Baylor drafted a report based on the recommendations made by Pepper Hamilton. But it turns out the law firm wrote a report and summary. Connected to the lack of documentation, plaintiffs lawyers are none too pleased that the school is turning over relevant emails (that's how they found out about the PH report) two years after the initial subpoena for documents.

A new(er) accusation against the school came from an assault in fall 2017--so after Briles left and as Baylor continued to vehemently argue that there was no sexually hostile climate at its school. A female athlete is accusing the school of mishandling her accusation of sexual assault against two football players. The woman's friends had apparently joked with her about not getting raped by football players. [1. Not funny and 2. see above about sexually hostile climate.] In the lawsuit, the plaintiff claims she was victim-shamed by the Title IX office. One of two men was found in violation and expelled from Baylor and the school claims all parties involved in the incident are no longer at Baylor and that they followed the correct procedures in its investigation and sanctioning. So things seem a little unclear, though the main contention, based on what I read, is how the victim was treated by the Title IX office and the information that was shared about her and the incident during the investigation.


Why this matters:
Well of course because: Briles should not be coaching; sexual assault is wrong; systematic cover ups of sexual assault is also wrong; not addressing a sexually hostile climate is illegal.

But the news of Briles's new job came out just as I finished the spring semester during which I taught sports ethics and sport and society. In all my courses we read Sexual Coercion Practices Among Undergraduate Male Recreational Athletes, Intercollegiate Athletes, and Non-Athletes. (I've written about this piece before.)

This semester I had a handful of students write in their margin notes: what about a study of female athletes assaulting men? Or asking why the survey the authors used did not use female athletes and ask them about their history of sexual coercion. In an essay about the ethical issues around sexual violence, a student argued that the punishment for false reporting of rape should be the same as the punishment for rape and that the issue of false reporting against athletes was practically an epidemic. This was a class in which they researched the scandal at Baylor. Briles's seeming redemption is not going to help people take this issue more seriously. There is the perception that he is being punished (he is--rightly so) and that he is the fall guy (probably also true). The fall guy role is especially damaging in getting people to take this situation (at Baylor and more generally) seriously. The redemption this football coach gets is fueled by the same attitude that let all those players go (largely) unpunished by the school and all those victims suffer.

FSU does not care

It took me some time to come up with the (somewhat simple) title for this post. I tried to distill what was so furiously frustrating about the fact the Florida State University has hired Kendal Briles as the football team's offensive coordinator.

First, Kendal Briles was an assistant coach at Baylor during the time of the sexual assault crisis/scandal/epidemic. It was his father, Art Briles, who has been held most responsible (at least within the program) for the cover ups and culture; but son, Kendal, also had a role as one of the team's primary recruiters. One story that has emerged from the collection of evidence that has been part of the many, many lawsuits Baylor is still faced with, involves K Briles asking a recruit if he likes white women and noting their widespread availability at BU and their desire for football players.

This is culture shaping. In a very racist and misogynist and violent moment, Briles tells this prospective player that he can access whomever he likes at Baylor. He is offering up the female undergraduates of Baylor to players. This makes me recall women's basketball coach Kim Mulkey's ill-advised and barely apologized for comments to the crowd about how it is safe to send their daughters to Baylor. I don't know if Baylor is any less safe than other campuses. I do not know how to measure this--and I don't especially care about comparisons at this moment. Briles was part of making that campus more dangerous.

Now he has a job at another school which has denied culpability in the culture of sexual violence. And so...two, Florida Sate University thinks it has moved past the Winston era. They have a new head coach (completely unrelated to the way the program and school protected the former Heisman-winning quarterback who continues to make news for engaging in harassment and assault). Admittedly, they probably have moved past that; perhaps they were never really mired in it at all. The media supported the school and the program (watch the segment in the Hunting Ground about Winston and listen to ESPN's Stephen A. Smith sarcastically mock then-anonymous victim Erica Kinsman's motives and unconditionally support, along with colleague Skip Bayless, Winston). It was, after all, only one victim (not true it turns out), and one perpetrator--who left to go pro thus making him the NFL's problem. And (deep cynicism alert), everyone knows how the NFL deals with domestic and sexual assault and violence.

It does not matter to the administration, to the fans, to the program, that FSU has hired a coach who helped perpetuate the climate of sexual violence at his former institution. And that is a problem--a dangerous one. Unchecked football cultures--like the ones that exist at Baylor and FSU--make campuses unsafe places.

Baylor is irredeemable

This week we learned that Baylor planted a mole inside student groups comprised of sexual assault survivors in order to both shape the PR/recovery efforts and to encourage the women to shift their paradigms and language about what happened to them when the school failed (a word they were encouraged to abandon) to investigate and address their claims of sexual assault.

Also this week, Dr. Roxanne Gay published a piece of commentary in The New York Times about the return to the public sphere of celebrity men who had been accused of sexual misconduct.

And, finally, as Erin wrote about, there are the Department of Education's proposed rule changes to the sexual assault guidelines for schools.

It was a tough week. These three events, on their own, are each frustrating, maddening, demoralizing. I will focus mostly on Baylor in this post, but what I took from this week, from these things--in the aggregate--is that they are a clear demonstration of how little we care about victims and how little attention is given to prevention.

As I write this post, Gay's latest book, an anthology of stories about rape and sexual assault called Not That Bad: Dispatches from Rape Culture sits on my end table where it has been for weeks. I have not had the emotional fortitude to pick it up. I certainly do not have it this week. But I know I must begin to read these stories--as everyone who has the ability to should. Because as the Baylor news and the surprise appearance of Louis C.K. at the Comedy Store in NYC this week, and the rumors of Matt Lauer's return to public life reveal--victims' stories are being erased, manipulated, and conveniently forgotten.

Baylor engaged in manipulation--horribly offensive and immoral behavior. (Is it even necessary to say "especially for a religiously affiliated school that implicitly claims a moral high ground"?)
Baylor, of course, denies the characterization of the Director of Student Activities, Matt Burchett as a mole saying that students were free to turn down his suggestions and that he was just keeping administration apprised of what was happening among the student body; in other words--this is his job. There was no respect for confidentiality, and there were no good intentions in regard to helping these students.

The utter violation of trust--at multiple turns--is one of the things I found so astounding in this story. These students already did not feel supported. They went to administrators to share their stories and nothing was done. Some were told that the person they reported as their assailant already had reports against him. There are so many accounts, from victims across the country, that include stories about being re-traumatized. Some victims have shared that the greatest trauma. the greatest violation, was what happened after their assaults.

It is time to shift the thinking about what constitutes "action" when we are talking about and reporting on sexual assault complaints on college campuses. Let's stop saying that schools did nothing in response to reports of sexual assault and harassment on their campuses. Because ignoring a complaint is doing something. Because telling a student that her reported rapist has other complaints against him and yet he is still on the football team, is doing something. It is denying a student action, a version of safety, access to education. It is breaking the law. It is doing harm. There is nothing passive about these actions. The deliberateness of Baylor's response not to the actual assaults but to the negative publicity the school and administrators received when the culture and patterns of sexual violence were revealed reflect this.

One issue with the proposed new regulations is that schools' active inactions, what Erin referred to as the "insufficient response," will not necessarily result in liability. (It was pretty clear that Baylor responded with deliberate indifference, so the proposals would not necessarily leave them unaccountable.)

I want to point out that we are not even talking about stopping or curbing rape, assault, and harassment--not really. We are talking about how effectively schools are responding to these incidents. The discussions about climates of sexual violence are side conversations at this point. The focus of activism and certainly of lawsuits and complaints is about how schools address reported rapes--not about how to stop them from happening in the first place. And while these things might, in some ways, be related, those connections are not explicit.

What is a sufficient/an effective/a just response, is at issue in the Baylor case and also a topic in Gay's column.  She writes about the #metoo movement and men in the public sphere, but her work is applicable to what is happening on college campuses and what could/will happen if the proposed regulations are put into effect (after the public comment period). I excerpted the following from Gay's piece that I found particularly relevant:

And this is what is so difficult about justice and sexual violence — the repercussions of the crime can last a lifetime. Satisfying justice may not be possible, but we can certainly do better given that all too often, victims of sexual harassment and violence receive no justice at all. 

We spend so little energy thinking about justice for victims and so much energy thinking about the men who perpetrate sexual harassment and violence. We worry about what will become of them in the wake of their mistakes. We don’t worry as much about those who have suffered at their hands. It is easier, for far too many people, to empathize with predators than it is to empathize with prey.

We see this empathy in the support for the backlash movement in which the accused are suing their institutions, claiming versions of reverse discrimination and sexism. We see it in the proposed rule changes and the Secretary of Education's public comments about campus sexual assault and a "fair" process for everyone. We see it in the support for fired football coach Art Briles.

Less publicized is the vitriol aimed at the women who file reports and complaints. We do not keep statistics about how many of them leave their institutions. How many vile things are tweeted or posted on Facebook and other social media platforms about them.

And while there are numbers about how many schools are facing complaints, the majority of the stories behind these complaints are far less public than the ones at Baylor, which--like Louis C.K.--continues to press on largely unscathed and offering little in the way of apologies.

Big Payouts--Not to Victims

A few weeks ago I wrote about the costs of Title IX violations focusing on the money schools are spending to defend themselves against lawsuits. I mentioned, in that post, that the costs Baylor has incurred are unknown; only that they continue to litigate several cases involving multiple plaintiffs and that they have settled one case.

But Baylor has not just been negotiating settlements with plaintiffs. This week we found out what Baylor paid a lot of money to get rid of former football coach Art Briles and former president, Kenneth Starr. In June 2016, the school reached agreements with both men. Briles received $15.1 million and Starr's severance was $4.5 million.

Baylor's settlement with one victim in the fall of 2017 was confidential. My educated guess is that it was not even close to what these men received.

I want to also note the difference in the amount of the settlements. Coaches get bought out of contracts all the time--a practice which I find infuriating but almost unbearable when the coach is being released because of bad behavior. Briles is just the latest of this group. (Technically not the latest. Rick Pitino is being paid very well for his role in the college basketball bribery scandal. The information about Briles's severance is the newest, however.)

Look at the payouts and figure out who had power and influence on that campus and think about how Baylor continues to deny there was a culture of sexual hostility on campus. Football players were not the only perpetrators, but they were definitely protected by the system. The system, if we are going based on payouts, that Briles ruled over--even more so than the university's president.

Another former president may also be rewarded for her complicity in the sexual abuse of gymnasts scandal. Lou Anna Simon, who stepped down as the president of Michigan State University could get over $1million easily if she comes back as a faculty member in addition to a slew of other perks and benefits. There was some outrage over the conditions stipulated in her contract but I have nor heard any more about whether she will be returning and under what conditions.

The cost of Title IX and backlash rhetoric

In talking about the repercussions of Title IX, a common statement is that the ultimate price of non-compliance is the revocation of federal funds. Quickly it is noted that this has never happened. No school has ever been punished by the Office of Civil Rights by having their federal funding pulled.

Perhaps this is obvious--but there are other costs to non-compliance. The fact that federal funding has not been revoked does not mean that schools do not pay for their mistakes and ignorance--willful or not.  This is an important reminder as we continue to exist in a time of uncertainty in regards to the enforcement of the law and continues on our theme of recent weeks: head to the courts.

We have, over the years, discussed the many settlements and jury verdicts that have cost schools hundreds of thousands, if not millions, of dollars. These are cases that have addressed retaliation against female coaches and administrators along with advocates of women's sports, as well as discrimination against transgender students. There are too many cases to link to here but examples have come from University of Iowa, Fresno State, Florida Gulf Coast, and several high schools that have been found to have discriminated against transgender students.

This post focuses on the costs schools incur when they choose to fight Title IX cases in court. How to proceed with legal action is always a literal cost-benefit analysis. I have been seeing more media attention being paid to these costs. The impetus for this post was an article about the pending case against Kent State University in Ohio: Kent State Budgeting over $600,000 for Kesterson Title IX Lawsuit. And then there was one about Iowa State which has "spent more then $120,000 on three Title IX lawsuits." Baylor, still in the midst of its sexual assault scandal has settled one case, but continues to fight in court the others it is facing.

Last week it asked a court to throw out a lawsuit from one of 17 plaintiffs suing the school. How much Baylor has spent in court thus far is not information I could find, but it must be considerable given the number of cases. It remains to be seen how hard they intend to fight each of the five other lawsuits involving the rest of the plaintiffs and how much money they will devote to what appear at this point to be losing battles--if not in court, then certainly in the realm of public relations.

The Kent State case, which I wrote about initially in 2016 and involves the alleged cover-up of an assault by a coach who is also the alleged perpetrator's mother, is currently in the discovery stage. The $600,000 figure cited in the headline is based on the total budgeted thus far since the lawsuit began.

We have not written abut Iowa State where only two of the three cases mentioned in the headline are still pending. (A judge dismissed one last week.) But one case is from a student  who was raped in a fraternity and who is accusing the university of deliberate indifference because administrators knew about the prevalence of sexual assault within the Greek system. The second is a lawsuit brought by the former Title IX coordinator who says the university prevented her from doing her job effectively and also engaged in patterns of racial discrimination putting women of color, like herself, in visible positions of leadership but not actually listening to them. I am especially interested in the latter case and how the intersectional discrimination this former employee faced will be discussed and considered by the court should it get that far.

Returning to the original topic though regarding money schools spend on lawsuits: costs matter because we should be paying attention to how much money schools are spending on lawsuits, especially schools--like Baylor--which have obvious patterns of violations and indifference and denial. But these public reports and interest about where the money is coming from and just how much of it is being spent can also have a deleterious effect.

They can contribute to the backlash against enforcement of the law, especially in a moment where how sexual assault on campus should be handled and how it will be addressed going forward is a very large uncertainty. We have already seen considerable backlash from a vocal group of accused men that has disproportionately taken up the public discussion of campus sexual assault. I worry that the "how much is school X spending" could have similar effects, especially when the school is public and thus taxpayers are implicitly called to action with these headlines and reports.

What differs is that schools have to address a lawsuit whether by fighting it or settling. But public opinion matters and it matters a lot when Title IX enforcement is in its current precarious situation.

From Texas to Canada: A Baylor Update

UPDATE: The Hamilton Tiger Cats rescinded their offer to  Briles. 

Meaning to post an update on what has been happening at Baylor in recent weeks, I was finally "inspired" by the news that former head football coach Art Briles has landed another coaching job. And all I have to say is Oh, Canada*, because Briles is now coaching in the Canadian Football League.

His title is Assistant Head Coach Offence for the Hamilton Tiger Cats.

First, I am not surprised he got another job. I am surprised it is in Canada. I thought someone in the US would hire him--probably an NFL franchise. Because what does it say about your reputation as it relates to sexual assault when no one in the NFL wants you? What remains to be seen is if this is the start of his redemption tour. Will he return to football in the US in a few years? Will he eventually be let back into intercollegiate football's ranks? Briles himself said (through his attorney) that he will be back coaching college football next year.

It is also curious that he took the CFL job given that--again according to his attorney--was offered positions by college teams. Why leave the country and coach in an lesser known league?

In news that was a little less prominent, another former Bear found a new home. Trayvon Blanchard is now playing at Texas A&M University-Commerce. He had played three seasons at Baylor before being suspended for his alleged involvement in a sexual assault. The investigation into that incident is ongoing according to his attorney. TAMU-Commerce accepted Blanchard, who will be on the field this season, even after his most recent arrest (last month) for misdemeanor assault/family violence. The university does not appear to be overly concerned with these things.Their statement:

"We welcome Travon Blanchard to our Lion Athletics family. As with any transfer, we thoroughly investigate circumstances and communicate with a wide net. We are confident that Travon walking on to our program this season is a positive step for both him and our program."

As a reminder, if TAMU-Commerce was an SEC school, this transfer would not have occurred. 

Back to what Briles left behind. In July, the university settled a lawsuit (one of six) it could not get dismissed. Since then...

It was announced this week that Baylor's Chief Operating Officer will be stepping down in the spring (at the end of the academic year). Reagan Ramsower will not be going far, however; he will move into a  position as a full professor in Baylor business school. This was the same move the university originally tried with former president Kenneth Starr. This time it may work because although Ramsower has been heavily critiqued for how he has handled the sexual assault scandal (as COO he is in charge of the Title IX Office, campus safety, and human resources), his name is less well-known. Still, being able to ride out a scandal like this and being granted a tenured position at the same school...

The beginning of Baylor's academic year also brought an additional lawsuit, filed by a Jane Doe, who is alleging she was sexually assaulted last spring (April) and that the university responded with indifference--and beyond. The allegations in the lawsuit--if found to be true--show that the school has not taken steps to improve its response to campus sexual assault and that the way it approaches victims remains hostile. Some "highlights": during the investigation the victim was asked what she was wearing and how much alcohol she had consumed; the investigation found that the assailant lied about sexual activity occurring but nonetheless found him not responsible because it was reasonable that he believed he has consent even though the victim was in and out of consciousness. Doe wanted to appeal the result and attempted to ask the Title IX office questions to which they did not respond before the deadline for filing an appeal had passed at which point they refused, according to the lawsuit, to extend the deadline. In short, as Baylor talks about how it is implementing the 105 recommendations that came from the Pepper Hamilton report (the external investigation the university commissioned), it is not actually doing anything on the (proverbial) ground.

Another setback for Baylor as it continues to contend with multiple lawsuits and a dozen plaintiffs came a few weeks ago when a judge ruled that plaintiffs' lawyers should have access to the materials (including emails and text messages) that Pepper Hamilton reviewed during its external investigation. Bayloe tried to contend that that information was privileged but the judge said the university waived privilege when it released a summary of the report's findings as well the 105 recommendations.

Finally, the same week that ruling went against Baylor, the school settled another lawsuit. Jasmin Hernandez, who was the first to file a lawsuit, engaged in a confidential settlement with her former university, which included dropping her case against Briles, who was named in the lawsuit along with his former boss, ex-AD Ian McCaw. Hernandez's story drew considerable attention. In addition to going public with her identity and story, her attacker, former football player Tevin Elliott, was found guilty of raping Hernandez in 2014 after the university failed to discipline him for the assault in 2012.

 In addition to the remaining lawsuits from the original "set," Baylor has to contend with the newest very damning allegations. There is far too much shouting about how great Baylor is (hello, Kim Mulkey) while nothing appears to be changing.


* this is a joke; I am not holding the entire country accountable for hiring Art Briles. 

If you can't dismiss them, settle them

Baylor University has settled one of the six lawsuits it is facing over its handling of sexual assaults. This lawsuit had a single plaintiff, a former student who said she was drugged, kidnapped, and raped in February 2015 at an off-campus party at what is known as the rugby house. The lawsuit, in part, accused Baylor of not properly handling her reporting of the incident. It also revealed what is now undeniable--that Baylor has an extremely dangerous culture and that has not effectively addressed the climate.

After initial contact with the Title IX office, the plaintiff found out--from that office--that multiple other women had reported sexual assaults at the rugby house. They worked with her for several weeks and then nothing. There was no hearing. She left Baylor after a failed appeal over a poor grade--due to her trauma from the rape.

Baylor had moved to have the lawsuit dismissed in October.

Details of the settlement were not released. 

The school has settled with three other women who did not filed lawsuits. There are now five lawsuits pending against the university.

Recent happenings: Florida, Baylor, Michigan State

Amidst the ever-growing pile of evidence that civil rights laws and statutes will not be defended, inspected, upheld by this administration (suspect nominations, budget & staffing cuts, etc.), there was some good news this week. OCR is investigating the University of Florida's handling of a sexual assault accusation against football player Antonio Callaway. We discussed this case last year when Callaway faced a student disciplinary hearing because the hearing itself was unusual in that it was presided over by a football booster who is also a lawyer. UF had never brought in an outsider to preside over disciplinary hearings and that this person was overseeing a case involving a football player was deeply suspect. The accuser herself boycotted the hearing.  No one from UF will speak on the matter because the investigation is ongoing. The accuser--who filed the complaint--and her team have previously commented on the situation.

Baylor must have an abundance of shovels because they just keep digging themselves deeper and deeper. Most recently, a former regent (who was on the board at the time of many of the alleged incidents of rape) chastised the alcohol consumption habits of female undergrads at the school during  series of 2009 emails about alleged sexual misconduct on campus. The former regent, and district attorney, Neal Jones's emails are part of evidence in one of the six current lawsuits against the university. Because underage drinking violates Baylor's Christian-based standards, Jones implies--at best--that the issue should be moot. Except his language reveals significant misogynist blame: “Those perverted little tarts had better be thanking their lucky stars that my guns are all aimed at a worse group of insidious scoundrels than themselves for the time being.” The plaintiffs (there are 10) contend that these attitudes about women and drinking and sexual assault--which existed, as evidenced--at the highest levels of Baylor leadership, contributed to the culture of sexual violence and the lack of appropriate responses to the reports of sexual assault.

Last week Baylor asked for one of the lawsuits it is facing be dismissed. This lawsuit has a single plaintiff, a former volleyball player, who alleges she was drugged and gang raped in 2012 by up to eight football players. Baylor contends that her right to make these claims expired in spring 2015. They also protested the language of her lawsuit which they felt was inflammatory and they are trying to strike from the court record her contentions that Baylor promised sex with female hostesses to football recruits.

It does not seem likely the the move to dismiss will be granted, though Baylor has now attempted to get all six of the lawsuits it is facing dismissed. A district court judge said in March that Baylor sexual assault victims will have until 2018 to file lawsuits against the university.

Far north of Texas, Michigan State University has also been dealing allegations of sexual assault against football players. At this time, the situation at MSU does not appear to be as widespread as at Baylor and officials actually investigated the January assault. These assaults are starting to look eerily familiar: a woman raped by more than one athlete and the incident being recorded. The three MSU football players were dismissed from the team in February (after criminal charges were filed) and subsequently found guilty by the school of violating the sexual misconduct policy and expelled this past week. The lawyer for one of the accused criticized the university's investigation for not being thorough citing all the evidence currently entered as part of the criminal trial thus reinforcing the misconception that student hearings are similar to the criminal justice system. A hearing for the men is scheduled for September. In another departure from Baylor, MSU hired an outside firm to investigate the football program after the allegations became known.

Another Baylor Lawsuit Survives Motion to Dismiss

Last week a federal court in Texas ruled that Jasmin Hernandez's case against Baylor may proceed to the discovery phase of litigation, denying the university's effort to dismiss the case for insufficient pleading. The plaintiff alleged that she was sexually assaulted at a party by football player Tevin Elliott. Even though (she alleged) she reported the assault to various university officials, including the football coach Art Briles the university did not take any efforts to investigate or discipline Elliott. She also alleged that prior to her assault, another student had reported Tevin Elliott to the university's chief judicial officer for similar behavior, and that this student was told she was the sixth such student to do so. As such Hernandez claimed that Baylor was on notice of the risk posed by Elliott and was liable for the deliberate indifference that heightened the risk that she would be assaulted. Additionally, she alleged that Baylor was liable for deliberate indifference after she reported her assault, which contributed to her emotional harm.

Both of these claims were sufficiently alleged in the complaint, the court ruled.  However, the latter claim for post-reporting harm was barred by the statute of limitations because the events occurred more than two years ago.  Though the heightened risk claim was also based on events more than two years old, the plaintiff could not have have discovered the university's alleged concealment of sexual misconduct by football players and other students until 2016 when the report of an external investigation in Baylor's failings to respond to a pattern of sexual violence by football players. Until then, the court reasoned, the plaintiff could not have reasonably known that Baylor's alleged indifference had lead to her sexual assault, and thus the the statute of limitations did not begin to run until that time.

Hernandez v. Baylor Univ., No. 6:16-CV-69-RP, 2017 WL 1322262 (W.D. Tex. Apr. 7, 2017).

Court Denies Baylor's Motion to Dismiss

A key preliminary ruling came this week in one of the several lawsuits against Baylor University that argue its mishandling of reported sexual assaults violates Title IX.  This lawsuit was filed by ten anonymous plaintiffs who allege having been sexual assaulted by fellow students (including, in one case, a member of the football team) between 2004 and 2016, while each was a student at the time. Each of the plaintiffs allege that they reported her sexual assault to various appropriate campus officials, but that the university responded inadequately by failing to investigate and discipline the alleged offender and failing to address the effects of assault through with academic, counseling, and other accommodations. In addition to arguing that the university's indifferent response to the their own report caused them psychological and economic damages that are subject to remedy under Title IX (so-called "post-reporting claims"), they also allege that the university's systematic failure to address sexual assault more generally increased their risks of being assaulted in the first place (so-called "heightened risk claims").

The judge first decided that the plaintiffs' post-reporting claims adequately alleged the required elements of claim for money damages under Title IX, mainly, notice to an appropriate person and the institution's deliberately indifferent response. Baylor argued that the plaintiffs' allegations about the institution's response cited violations of the Department of Education's Dear Colleague Letter and argued, correctly, that such violations do not automatically constitute deliberate indifference. However, the court decided that the plaintiffs had still adequately alleged deliberate indifference, pointing out that violations of the DCL should at least be a factor in the analysis of whether the responses were, overall, indifferent. The court also agreed with the plaintiffs that they were not required to allege that the university's indifferent respond lead to further sexual harassment or assault, only that it heightened the risk thereof.  However, four of the ten plaintiffs' claims for harm arising from the university's failure to respond to their reports are outside the two-year statute of limitations period that applies to this case. So only the post-reporting claims of the other six will move forward.

Next, the judge reasoned that the heightened risk claims were also adequately alleged. The plaintiffs alleged that the university's conduct in the face of widespread sexual assault constituted an intentionally discriminatory policy of exposing students to a heightened risk of sexual assault. Such conduct included systematically misinforming students of their rights, failing to investigate, discouraging reporting, and falsely reporting to the government that no sexual assaults occurred. The court reasoned that because they were alleging an intentional policy, the requirement to allege deliberate indifference did not apply.  The judge also determined that all ten of the heightened risk claims can proceed, even those based on alleged sexual assaults that took place more than two years ago, because only recently did the plaintiffs have access to all the information they needed to allege the kind of pattern of repeated misconduct that could amount to an intentionally discriminatory policy. In fact, as some legal experts have already pointed out, the judge has effectively set a 2018 deadline for other potential lawsuits by victims of other past sexual assaults. It will be interesting to see if this increases further still the number of lawsuits against Baylor. It also makes it less likely that Baylor will succeed in getting the other, similar lawsuits dismissed.

Baylor & culture

As investigators from the Office of Civil Rights prepare for a trip to Waco, Texas to investigate Baylor University, employees of the school continue to make headlines for making very ill-advised comments. 

Kim Mulkey, the women's basketball coach, verbalized the frustration many at Baylor have over the way their school is being portrayed nationally (i.e., as a bad, unsafe place for women; a culture that protects athletics and athletes at all costs, including the safety of the student body generally). At least that is the excuse people have been providing for her since her on-court, post-game comments last weekend during which she said: “If somebody is around you and they ever say, ‘I will never send my daughter to Baylor,’ you should knock them right in the face.” In the actual post-game conference she said about the scandal,  " [I am] tired of hearing about it" and to that people should "move on, find another story to write."

Let's problematically put aside for a moment the violence of her statement and reflect on the message.

I don't know if Mulkey has lost recruits because of the scandal; women who said they didn't feel safe attending Baylor. But it's possible that Mulkey is simply sticking up for her school.

Regardless, she is sending the message that not only is everything alright at Baylor--everything is great--because Baylor is "the damn best school in America!" This is the ultra-nationalism of school pride. It is ignoring the problems Baylor so clearly has and refuses to acknowledge. In that moment (and in subsequent moments I will turn to next) she is contributing to the culture she--and many, many others--says does not exist at Baylor.

In doing so she 1) encourages a violent response (see again ultra-nationalism) and 2) erases the experiences of the women who were raped at Baylor.

Sunday (a day after mistakes were made): Apologies were issued. Mulkey does an interview with ESPNW writer Mechelle Voepel in which she says the comment about punching people was a "poor choice of words." What she really meant, she explains, was that people should be firm with those who are speaking badly of Baylor. She has interpreted the rumors that parents would not send their daughters to Baylor as judgements on the women currently attending BU. The sentiments behind those alleged rumors are more aimed at the safety of future college students. There is no implication that the women who choose be there now are misguided.

She said she takes seriously the situations of the women who were assaulted and that victim should always be helped. She said she would never support anybody who denied help to victims. But she added that she does not "think that everybody at Baylor should be put under an umbrella as all being a part of the things that happened. I can't fathom anybody not helping someone who is a victim of that type of crime. I don't condone it. My words [Saturday] did not express exactly what I was trying to say."

It remains unclear what exactly she was saying. But I will offer an interpretation of the initial comments and apology: Baylor is awesome. Don't let anyone tell you otherwise. But don't hit them as you tell them that. My daughter went here and she was fine. Everything is fine. Yea, maybe some bad things happened to a few women, but not everyone here is responsible for that so please stop asking me questions about it and let me coach basketball.

Mulkey added insult to injury in the wake of the apology. In post-game comments just a day later she refused to answer questions about her comments. She just kept referring people to the Voepel article.

Mulkey is clearly a part of the Baylor culture that has created this scandal. She may not have directly refused help to a victim, but her denial of the realities on the campus she is trying to bring young women to is part of the culture that allowed those actions to occur. There will be no change at Baylor until people there acknowledge the problems that existed, the problems that persist, and that major changes need to be implemented--including training your employees on what to say about the scandal.

Updates from Baylor, Amherst

An additional lawsuit was filed against Baylor at the end of last week. A former female student alleges she was raped by two football players in 2013 while other players recorded the assault and shared the video. The school took two years to investigate the assault. It suspended and eventually expelled one of the players. The other transferred. The lawsuit, like the others, cites a culture of sexual violence at Baylor; a culture Ken Starr claimed did not exist both while he was president of the university and even after his departure.

New information, though, has emerged from this filing. Previously, we have known about the 17 incidents since 2011 that involved 19 players. The lawsuit states that there have been 52 sexual assaults (within an unnamed 4-year period) by 30 football players. The increase is likely due to the fact that the woman who filed the lawsuit was a member of a campus group organized to show football recruits around during visits. Members were supposed to be available for sex; a tool used to sell Baylor to the prospective players. Art Briles's attorney said the former coach, who himself is involved in litigation with the school, denies such a culture existed under his leadership.

With little attention, Amherst College announced before the start of the current semester, that they had concluded their investigation of the offensive messages sent by members of the men's cross country team. Sanctions include suspensions ranging from several meets to the remainder of an athlete's Amherst career. All members must undergo an "educational process" and the team is on probation until 2018.

Updates

In Pennsylvania, the hazing case against football players participating in No Gay Thursdays has been settled. Three seniors, accused of harassing/hazing a first-year player, plead guilty to summary harassment. There were discrepancies between what was originally reported (penetration with a broomstick handle) and what was presented during the hearings (pushing a broomstick handle against the victim's leg while they held him down). How the seniors were punished remains unknown. Summary harassment is a citation, not a criminal offense.

As a reminder, No Gay Thursday had been a team tradition for several years. The football coach was initially suspended and then resigned. The remaining football staff was fired; though they were told they could reapply for their jobs. While the actions initially reported seem to have been wrong, the day itself and the culture that created it was still present and threatening. 

There is a Title IX complaint against Liberty University from a non-student who said she was sexually assaulted by a university employee in 2015. The university, which refused to fire the employee after their own investigation into the accusation, said it expects the complaint to be dismissed. But if I was OCR, I would take the opportunity to go to Liberty and find out what is happening with their brand new athletics director.

In November, Liberty hired Ian McGraw, the former Baylor AD who is facing a lawsuit from a Baylor student who accuses him of knowing that former football player Tevin Elliot had a history of sexually assault and displayed deliberate indifference, which led to Elliot assaulting her. Basically, McGraw was part of the Baylor house that got cleaned out when all these things--including additional assaults by athletes and non-athletes, and more deliberate indifference among various campus offices--came to light. Liberty president Jerry Falwell, Jr. is very enthusiastic about his choice: “You look at what Baylor was able to do during his tenure, it fits perfectly with where we see our sports programs going.  This is an exciting time for us.” He also presented McGraw's exit from Baylor as a choice.

I have written frequently about how athletes who commit physical and sexual assaults are often passed around athletics programs by coaches and admins who willfully ignore the issues. I did not think McGraw would be hired so quickly and by another ultra conservative Christian institution. Liberty has set itself up for problems should anything happen under McGraw's tenure. And its moral failings are very much in display with this move. Some in the Liberty community are not happy. Though no students would speak to ESPNW on the record for fear of retaliation. the majority were displeased with the hire and the repentance narrative the school is employing in support of the hiring. Several alum have spoken out, including some who said they would stop donating to the school while McGraw is there.

More on the Baylor swept asides: former coach Art Briles is suing three Baylor regents and one university administrator for libel, slander, and conspiracy. In the lawsuit, Briles claims that the four have made false statements about him in the press. These comments have prevented him from getting another head coaching job, he claims. Not sure how this lawsuit affects the very large settlement Briles received. As part of that deal, Briles was told he could not discuss the cases nor criticize the regents. That was in June. Sometimes there are time limits on such terms; but less than a year seems to be a bit short. Meanwhile, Briles could hit up his old boss for a job. Neither McGraw nor Liberty seem to care all that much about accusations, about character, or the safety of their student body.

On suspending seasons

Yesterday, Amherst College suspended all team activities for the men's cross country team after a student publication revealed social media messages and emails to incoming team members that included racist. misogynist, and homophobic comments.

Last month, Harvard suspended the men's soccer season in the wake of revelations that the team has continued its practice of ranking first-year members of the Harvard women's soccer team in sexually explicit ways.

In a few weeks, the Baylor football team will play in the Motel 6 Cactus Bowl against Boise State despite accusations of sexual assault by 17 women against current and former football players and a clear evidence of cover-ups.

One of these things is not like the others.

Things have been brewing, arguably boiling over, at Baylor for some time, which is why Paul Finebaum, ESPN commentator, expressed outrage last month that the team had not been suspended. Finebaum said on-air that Baylor's football season should have been suspended in light of its many misdeeds (chronicled here--and everywhere). Finebaum was calling for the Big 12 to issue the suspension because neither the NCAA nor the university itself will do so. The NCAA is not planning  anything in response to the cover-up of the sexual assaults and to an institution that does not have control over its athletics program. Baylor hired a law firm to do an external investigation and then failed to make changes and refuses to acknowledge a culture of sexual hostility and athlete privilege.

The two events at Amherst and Harvard have commonalities: introduction of the first-year class into team culture using offensive discourse; elite, private schools; men's "minor sports"; both schools will conduct investigations into the matters.

At Harvard the offense was directed at the women's soccer team; a betrayal of what many of the women felt was a familial (non-sexual) relationship. Since the soccer scandal was revealed, it has come out that similar practices have occurred within the men's cross country team. The initial response was meh. The athletic director said Harvard would handle it internally and by trying to make it less of a media thing--he made it more of a media thing. The additional findings that 1) players were not being "forthcoming" about what was happening and 2) it was still happening forced the AD as well as the university president to make stronger public statements and ultimately cancel the season. Investigations are ongoing.   

At Amherst, it does not appear--at the moment--that the commentary was directed at a female team. A June 2015 list of female students has surfaced that includes pictures and comments about their sexual pasts, including guesses about STD infections. The incidents in question are from 2013-15. Of course, as we saw at Harvard, these things often do not just disappear on their own, even when there is new leadership--as there was at Harvard when they hired a new soccer coach a few years ago.

Also, the cross country season is over. "Team activities" would likely include team banquets or coach-led practices, but it's finals week at Amherst, and I assume there is not much on the docket for the team. So now Amherst must decide how to proceed. Will athletes involved be individually punished? Will the be prevented from running next season? Many cross country runners will also run indoor and outdoor track. Will team members be allowed to compete for their other teams? To its credit, Amherst, under its (not so new anymore) president, has taken issues of sexual assault and harassment more seriously than in the past. The school's response was immediate and the AD and president are seemingly on the same page. I hope this one does just fade away. Investigations are ongoing.

What have we learned? Well male privilege and sexual misconduct are not just the province of football players. This is obvious when taking a broad look at the cases of harassment and assault involving athletes. Baylor gets the most attention because it is a big-time football program. (There is also the issue of adherence to "Christian values" that are the alleged bedrock of the institutional mission; this has received less attention.) So what it looks like is that there is more at stake at Baylor--for the athletes, for the coaches, for the school. I do not agree with this view because what I know for sure is that the stakes are the same for the women who are the victims of these athletes and for potential victims. They are on campuses where sexual violence is a known reality (as it is on most campuses). The crimes and misdemeanors may be different and, at the individual level, the effects on victims may be different (in part because of school response). But all these schools have a climate of sexual hostility and it is manifesting in their athletic departments, among their male-student athletes (and probably at higher levels as well). And this means that students do not feel safe at their schools.



PS. More on Baylor:

The university received word this week from the Southern Association of Colleges and Schools, an accrediting body, that it would be monitoring Baylor's ability to 1) maintain institutional control over intercollegiate athletics, 2) create a safe and healthy environment for students, and 3) provide adequate student support services.

In other words, while there are a lot of external pressures on Baylor, it continues to do very little. Baylor fans might say that ditching Art Briles was enough. Finebaum, and many others, do not think so. Firing Briles (who is suing the school for libel) was cleaning house. It is was not shoring up the structure of the house. In fact (to continue to metaphor) Baylor brought in a temporary coach, Jim Grobe, who seemed to be predisposed to making things dirty again and further weakening the structure. (Based on comments during his early press conferences and interviews.) The new coaching staff has been named. We shall see what those press conferences bring.

Investigations are over.

PPS. Columbia wrestling
I knew I forgot something! Columbia University (also elite, private) suspended its men's wrestling team ("minor sport") after some members' racist and misogynist texts were discovered. Columbia completed its investigation last month. While the investigation was pending, members were not allowed to compete. The team was still practicing.

The messages were sent in a group message format. Those not participating in the group message were allowed to resume competition. Some members were suspended for the rest of the season. Others were suspended until the start of spring semester.

Notable in this case: former assistant coach Hudson Taylor who founded Athlete Ally, a group that supports LGBT athletes, took some responsibility for the culture that engendered these messages:

"[The actions] are a reflection of our culture and my coaching. I apologize to the Columbia campus, to the alumni, and to my former wrestlers for not doing more to develop them into young men of better character.”

Throwback Thursday, aka Updates

UCLA settled a lawsuit last month with two graduate students who alleged that administrators discouraged them from filing a formal complaint against a professor who sexually harassed and assaulted them. The settlement includes a financial settlement, part cash as well as a year-long dissertation fellowship to one of the plaintiffs. The situation for the history professor they accused of unwanted sexual advances has been in flux since the women initiated their complaint in 2013. He was suspended without pay for a quarter and resigned his position as director of the Center for Near Eastern Studies. He resumed teaching, but is not teaching this fall. He is scheduled to teach in the spring. He is not allowed to use his history department office during the week. His office hours are being held in a library on campus and he is being required to keep the door open while meeting with students. He is not allowed to have contact with one of the plaintiffs. (It seems the other has graduated.) He has to pay the UCLA Board of Regents $3,000.

The saga at Baylor continues, probably because they keep doing ALL THE WRONG THINGS. Granted they cannot control the behaviors of the people they have fired who continue to talk to the media. Though I am curious as to why Art Briles sat down with ESPN whose reporters have not been kind to the school if the many, many segments on Outside the Lines are any indication. The way Briles and former President Ken Starr have proceeded since their release is an interesting study in voice and silence. Sexual assault is a very silencing experience and only a few of the women who have joined the lawsuit against Baylor have spoken about their experiences. Some have asked to speak personally with Briles who said he has been prevented from doing so under terms of his release (his very lucrative release). So he cannot speak to them but he can speak publicly--about some things--the things he wants to talk about; the things he thinks will rehab his image and get him another coaching job next year.

Starr seems to be trying to help his friend, Briles, on this quest. He said in a room full of reporters in Texas that Briles was "honorable" and "unfairly criticized." He also said, in reference to the sexual assaults (apparently there is no gag order on him) that it was not a problem with the culture of Baylor or Baylor football. He was called out by a reporter who thought it hypocritical that Starr could address a culture of alcohol abuse on his campus but not sexual assault. And still these men get public platforms. The good(ish) news? Well all the talking is not helping public image. I have seen stories from sports journalists warning schools that might in the market for a new football coach to avoid Briles.

And now the Title IX coordinator has resigned. Patty Crawford, at Baylor since late 2014, said she was being prevented from implementing the changes outlined in the Pepper Hamilton report--the one Baylor itself commissioned when news of the sexual assaults became public. Crawford's resignation, her filing of a Title IX complaint with OCR, and her stories about how Baylor continues to violate the law suggest what many of us suspected: that report was a PR move. Who are they going to get to do that job? How are they going to explain themselves when OCR heads to Waco? Oh never mind. They promoted from within--of course:
               On Monday, Baylor said it had filled Crawford's post by promoting senior deputy                 coordinator Kristan Tucker, whom interim president David Garland called "a capable and experienced Title IX professional." (from ESPN article linked above)

It also appears that a Title IX investigator, one of two employees charged with investigating Title IX violations on campus, is no longer at the school. Whether she resigned or was fired is unknown.

On the same day that Crawford resigned, two more women joined the lawsuit against Baylor. That brings the total to eight. Only one of the eight women was raped by an athlete. The culture of sexual assault--that does not exist, according to Starr--is not confined to athletics.

The watered down California bill about LGBT discrimination at private colleges has passed. Governor Jerry Brown signed the bill which requires private schools to publicly post their gender and sexuality policies and to note any Title IX exemptions they receive from the Department of Education. The bill was originally written to prevent these schools from discriminating against LGBT students, but the outcry from religious schools and groups resulted in the compromise bill signed last week.

What happened at Baylor

News broke yesterday, after several days of rumors about who was being fired and when, that football coach Art Briles would no longer be coaching the men's football team at Baylor University and that Ken Starr had been relieved of his duties as university president, had been "demoted" to chancellor,  and remains on faculty at the law school. The athletic director has been placed on probation. This is all in the wake of the university-commissioned report to look into the accusations that the school had mishandled many reports of sexual assault committed by male students. Most of the accusations were against football players, some of whom had actually been taken to criminal court and are serving jail time, but have never been reprimanded by the school.

The school hired an outside law firm to conduct the investigation last fall when the years of cover-ups became more public due to an ESPN Outside the Lines report and the filing of a lawsuit by several female victims. It found, just like OTL and other media outlets had found, a large cover-up of the assaults.

So here are my thoughts, in no particular order.  I focus on the culture at Baylor that created this situation and less on the legal and procedural aspects of this scandal.

1. Ken Starr being demoted to Chancellor is not enough. Starr's history certainly suggests that he is capable of investigating sexual relationships and he admitted publicly that he failed in his duties as president. He even apologized to victims. This does not mean he deserves a leadership position. In fact, keeping him as a chancellor calls into question Baylor's commitment to changing the culture on their campus. Starr was the guy who helped create that culture.

2. Several news outlets have posed the question: why haven't things changed yet and/or will this be the watershed moment? I do not predict watershed moments anymore or cite current scandals as turning points, because I have been so wrong before. I swore that FSU/Winston was going to be that turning point for reasons I will not detail here. I was confident--and wrong. Baylor is taking responsibility (after a lot of silence), but it remains to be seen how they will fare if/when the NCAA comes to investigate or in the court of public opinion, or in real court. (See #6) Baylor is not the only school under investigation or facing a lawsuit. This news has not drawn Tennessee administrators out of their offices to admit wrongdoing or resulted in anyone being fired today at any of the other schools under investigation.

The better question is why hasn't there been a turning point already? Why wasn't FSU that moment? Or Oregon? Or Colorado? Or New Mexico? Or any of the other many, many cases of student athletes committing sexual assault?

3. Dear members of the board of regents who are so shocked at the findings of the report: You are responsible for this too. No one really knows what goes on behind closed doors or at alumni/donor functions where coaches and trustees and presidents mingle and attempt to raise money for their team school. But trustees like winning football teams because they think they brings in dollars and they make that known to university leaders who make it known to coaches. The looking the other away--or the pushing away--when problems that impede this arrangement arise may be a little more deliberate within athletic departments than in the trustee board room, but trustees would be naive to think that the desire they exude for a successful athletics program does not have consequences. Consequences that cannot be entirely placed on the moral failings (in addition to the illegalities) of those whose contracts they approve. So more faire, less laissez (sorry francophiles).

4. Dear ESPN and other sport media outlets: Perhaps we should dwell on this story a little bit longer, engage in a little more introspection. Maybe about the ways in which sports media cover sexual assault and elevate college students who play football to celebrity status? It's too soon to furrow the brow and rub the chin wondering who will be taking over for Briles and lamenting about how Baylor football was just beginning to get good again. Also, don't forget that the rebuilding was necessary because of a 2003 scandal in which a basketball player killed a teammate and the subsequent revelations about the dysfunctional athletic department.    

5. The comparisons to Penn State have been interesting and go back to the questions about why things have not changed. How could Baylor happen in a post-Penn State world?

Because Penn State was about a grown white man preying on young, vulnerable boys. People are far more disgusted and appalled by this version of a sexual predator (because of age and homosexual acts) than they are by college-age men raping college-age women.

Because there is a hierarchy and male-on-male pedophilia outranks--by far--men raping women in American culture. Maintenance of this hierarchy involves downplaying the latter by 1) not calling it rape and 2) vilifying victims. According to the report, Baylor engaged in the latter itself when it retaliated against a victim who came forward.

Because Penn State was seen as an anomaly and not as a cost of the culture of American intercollegiate sports. That is what these two cases have in common: the cover-ups and denials in order to maintain a successful athletics program. But that commonality is not something most of American society chooses to see, and that is why Penn State is not a watershed moment and arguably why there has been not been a turning point. 

6. Breaking my own rule about not commenting on the legal side of this scandal: I imagine that a settlement is forthcoming in the lawsuit brought by women who were victims of assault. The question is whether the terms of that settlement will be made public. If Baylor really is all about contrition and change, then they will not place a gag order on those involved.

Updates on campus sexual assault cases: Baylor & Tennessee

Two weeks ago, a lawsuit was filed against Baylor University by one of the victims of already jailed former student-athlete Tevin Elliot. The victim alleges deliberate indifference on the part of the university. Baylor's problems with athletes committing sexual assault were documented in an Outside the Lines, and through there is no telling what evidence will be brought into the courtroom, the fact that people who work(ed) at Baylor talked about the multiple complaints against Elliot and the denial of services to the victim do not bode well for the university. Also, it is this victim whose case resulted in Elliot's incarceration. I predict a settlement in which Baylor admits no liability and makes a statement about settling to avoid lengthy litigation with its attendant costs. (I wrote about the Baylor situation earlier and that post includes a link to the OTL story.)

 Last week, local police in Waco arrested former Baylor football player, Shawn Oakman and charged him with sexual assault. Oakman is entering the NFL draft this spring and was expected to be a middle round pick; there is no telling how this arrest may impact his draft standing. The police were also seeking to access his cell phone and DNA. The alleged incident occurred in early April according to the victim, a female graduate student at Baylor. So this case is not actually related to the lawsuit against Baylor or the reporting that OTL did. It is, of course, related to the culture of privilege and sexual violence that exists in the football program. Oakman has graduated from Baylor, where he--notably--did not begin his career. He was dismissed from Penn State because of behavior issues, which did not involve--according to reports--sexual assault, but did include assault on a female store clerk. 

Since the lawsuit against Tennessee was filed in regards to the climate of sexual hostility there which includes incidents of harassment and assault, the main news has been the addition of Peyton Manning to the text of the lawsuit. Manning is not the subject of the lawsuit, but an incident in which he allegedly sexually harassed a female athletic trainer is in the lawsuit as indicative of the university's pattern of deliberate indifference, especially in regards to athletes engaging in sexual assault and harassment. Other former players were also named, but of course Manning's draws a lot of attention to the case. The university wanted his name removed from the lawsuit but a judged ruled last week that that was not going to happen. The university also wanted proceedings to move from Nashville to Knoxville, likely because they believe that if this goes to trial a Knoxville-based jury will be more favorable to their side. The judge said no to that as well.

Tennessee continues to combat the lawsuit in any way it can, which includes the above actions as well as taking issue with several of the eight women who filed the lawsuit earlier this year saying that not all of them have standing.

Patterns emerge: Baylor

As I wrote last week, the University of Tennessee and Baylor University find themselves in similar situations: student athletes accused of sexual assault and subsequent indifference to these reports by administrators. More has come out about Tennessee, specifically Peyton Manning's involvement when he was a student athlete. I am moving on to discuss the cases at Baylor though for now and may return to Manning later. 

As I noted in my original post, the two situations share characteristics but are different in key ways. First, the judicial system has already handled the cases of two of the accused. Two former Baylor student-athletes were convicted of sexual assault, but the school did nothing about either of them. They did not investigate when victims came forward. What we more often hear is that schools think that because law enforcement and the legal system did not accrue enough evidence or did not find the accused culpable, schools are off the hook. Though not true, it is not difficult to see how this thinking manifests. But here there were two guilty verdicts. Tevin Elliot, a former football player serving twenty years, is one of those players. He was tried for one incident but is accused of a handful of others. ESPN's Outside the Lines ran a story on it which featured several of the women accusing Elliot of rape.

The story reveals the culture at Baylor that allowed athletes to continue to assault women. Women reported the assaults to local police and to Baylor. One woman, a student athlete as well, reported Elliot's assault to the Chief Judicial Officer at Baylor, Bethany McCraw. The student athlete named Tevin Elliot specifically and McCraw responded that this was the sixth accusation against Elliot. She told the victim that there was nothing Baylor could do until a court acted on it. We all know by now that this is wrong. Did the CJO know her institution was required to investigate?

So scenario one: McCraw did not know Baylor was legally obligated to investigate all reports of sexual assault. This requires us to ask: why not? How do you not know the laws that directly affect your job which is maintaining the welfare of the students at your school? At best, Baylor has ineffective people in very important positions. Even if McCraw did not know the law, she knew this was not the first time. She knew that the football program and the athletics department were aware of Elliot's behavior. As an administrator in the Dean of Students office, one might think she would be interested in the welfare of Baylor students who have been victims of sexual assault. What she offered this sixth victim was help with finals. This leads me to think that scenario two was more likely. McCraw was protecting and/or being pressured to protect the program by protecting Elliot. She discouraged the victim from seeking redress in the form of a restraining order or filing criminal charges. She did not initiate an investigation.

So how administrations deal with reports contributes to the sexually hostile environment at Baylor and the culture of privilege within the athletics department: everyone knows and no one is doing anything. This is a legal failure most certainly and Baylor has, in the wake of the publication of these accusations, been releasing all sorts of statements about how they are examining and changing the policies and procedures. But this was a moral failure as well. While this is often true in other cases we hear and write about, it seems so much more salient at Baylor. I absolutely do not think a Christian university is or should be more morally upstanding than secular institution. But Baylor flies its Christian flag very prominently. They use the religious affiliation of the school to justify discrimination. It is unfortunate, but it is not difficult to see how Baylor's intolerance of certain lifestyles and behaviors (including premarital sex!) has resulted in this culture of misogyny.

Sadly, that culture extended to all corners of the institution, including counseling services. Victim number seven, the one whose criminal charges against Elliot were what got him convicted, sought out mental health services after she reported the crime to the Waco police. They told her they could not help her and warned her about hurting the reputation of the programs by accusing one of its premier players of rape.

The second conviction against another Baylor football player came after Elliot was released from the team and expelled because of the criminal charges against him--still without an investigation by the school into the accusations. In this case the district attorney found a culture of ignorance about sexual assault at Baylor. She reported an inability by administrators to see non-stranger rape as rape. Maybe this is true, though the cover-ups and the narratives suggest something more insidious than ignorance or even indifference.


Baylor has hired a law firm to look at old cases. But there is no promise that those findings will be made public. They hired, as of 2014, have a Title IX coordinator. Right now, all of those actions look like CYAs. I find it almost impossible to believe that in 2011, when these accusations began, that administrators were unaware of the issue of campus sexual assault. This was the year of the Yale complaint and the fallout from the Penn State scandal. There had already been verdicts (sometimes with large jury awards to victims) against K-12 schools who had neglected to address sexual assault against its students. There was a Dear Colleague letter that year as well. Everyone, including Baylor, was on notice.

Final note: there is no OCR investigation into Baylor at this time.

Baylor settles with sexual assault victim

Baylor University has made an undisclosed settlement with a student who was raped by a former football player. Sadly, this is no longer an unusual situation. We have not been writing about all the lawsuits and complaints filed, in part because we do not hear about all of them. This Baylor case just came to my attention with the news of the settlement. I write about it for two main reasons. One, it involves a transfer athlete who was dismissed from his previous institution most likely for reasons related to violence against women. Second, the settlement comes after a successful criminal conviction of the athlete for sexual assault.

The latter: football player (he never played a game, actually, but was on the roster), Sam Ukwuachu, was found guilty of sexual assault in August. Sexual assault convictions are difficult to get. None of the articles I have seen detail what evidence was put forth that was so compelling, but apparently it was not good enough for Baylor which, after its own investigation, chose not to discipline Ukwuachu. The school's investigation consisted of 4 interviews: victim, accused, and a friend of each. Though the victim went to the hospital after the attack, which occurred in October of 2013, had a rape kit done and spoke to the police, none of this evidence was considered by the investigative team. The investigation was so controversial that the defense was not allowed to reference it during trial. 

Though criminal charges were still pending, a member of the Baylor coaching staff said they expected Ukwuachu to play in 2015 and patted themselves on the back for handling everything so well.

Head coach Art Briles said the same month his player was convicted: “We’ve sat back and waited for it all to take shape and see what the outcome is. So, I like the way we’ve handled it as a university, an athletic department and a football program.”

Baylor will still undergo an OCR investigation for its handling of sexual assault complaints. 
In short, the school's investigation, which requires a lower burden of proof, found Ukwuachu not responsible. A criminal court, where so may rape cases do not even make it because prosecutors do not feel they can convince a jury beyond a reasonable doubt given the evidence and testimony, found him guilty. 

Even in reporting the conviction and now the settlement, the media focus remains on what Baylor knew about Ukwuachu's past. Originally recruited and attending Boise State, Ukwuachu was dismissed from that team and left Boise in May 2013--to attend Baylor. Briles says the former BSU coach Chris Petersen did not mention the allegations of domestic violence against the player which involved a romantic partner. Petersen claims that he did indeed discuss these things. Boise State issued an official statement saying that Ukwuachu's dismissal had nothing to do with violence against any women. Adding to the allegations, innuendos, and incomplete stories is the fact that former Florida head coach would "not touch" the player because of the rumors about his behavior. Interestingly, the SEC, which Florida is a part, will not admit student-athlete transfers with records of violence--though this rule was not in place at the time.

The question that remains for me is who will investigate these he-said, he-saids and who in the administration, including the athletic department, knew what--and when. Will OCR look into it when they go to campus for their investigation? Does the NCAA care anything at all about this pattern of passing players with records from one institution to another? The policy around transfer athletes should be part of a school's sexual assault policies and procedures. Keeping athletics as tuns on their own bottoms has proven to be harmful, and it is time to stop viewing them, their leaders, and their student-athletes as distant and/or distinct entities.