We wrote in July about writer Jonathan Krakauer's attempts to get the records related to the hearings and disciplinary actions against a University of Montana quarterback. He was initally granted access but the decision was appealed and the Department of Education is filing an amicus brief with the Montana Supreme Court for the purpose of "clarify[ing] that disciplinary records constitute protected 'education records' under" FERPA. The department claims it is not taking a side in the case, though it certainly seems like they are saying, with this filing, that Krakauer should not get access to these records, which is one of the two sides.
Several legal experts have weighed in on the case with no clear indication about how the law should be interpreted. Does the fact the the student's name is widely known matter? What about his status as a student athlete? How does public interest and protection weigh against the privacy of this student?
The legal wranglings, which are not my area of expertise, are actually manifesting the sociocultural concerns (more my speed) over how schools are handling sexual assault--specifically assaults committed by student athletes--and the balance between transparency and privacy.
We know that athletic departments have often tried to keep the punishment of crimes by student athletes "in-house." The NCAA addressed this issue over the summer by clarifying that investigations and punishment of sexual assault needs to be handled by the appropriate university officials usng university policies and procedures just as they would for non student athletes. But looking around (perhaps looking a little south--toward Florida maybe?), some might wonder how much influence this edict has had.
Also, given that the discourse from the Department of Education and the Obama administration has centered around transparency--in how cases are reported, handled, and investigated, how discipline is enacted, how communication among all the parties occurs--some see this amicus brief as pulling the shade down a little.
How or whether these concerns will play out in the appeal remains unknown. Here is what I know: a high-profile student athlete was found guilty of sexual assault and expelled. That punishment was appealed to the state commissioner of higher education (i.e., to a pretty high level) who reduced the punishment to a suspension that allowed the player back on campus in time for football season. Eyebrows are rightly being raised. In the end, the court may decide that FERPA does not allow for these records to be released, but that does not mean that an explanation should not be provided. I think that the story will come out regardless, the question is whether it will be supported by official documentation or the testimony of anonymous insiders familiar with the case.
Showing posts with label University of Montana. Show all posts
Showing posts with label University of Montana. Show all posts
Wednesday, December 17, 2014
Tuesday, July 08, 2014
Krakauer digging into Montana case
We have covered the cases and investigations into sexual assault at the University of Montana, a place TIME referred to as a rape capital. One of the early posts was from Erin and about the accusations against members of the football team. The football coach and AD were fired. In this post Erin mentions additionally that a restraining order was taken out against the quarterback. It is this case that is of interest to Into the Wild author Jon Krakauer who has asked for records related to the case be released. After our post about the restraining order, it seems that the quarterback, Jordan Johnson, was found by the university to be guilty of rape and was expelled. Except he wasn't expelled. He was suspended from the football team and reinstated in time to help the team to a 10-3 record in 2013. He was acquitted by a criminal court.
Krakauer wants the records from the university hearings, but because they are student records, the university will not release them. He has said failure to release the records of the education commissioner (he is looking for information about how the expulsion order was reversed) is a violation of state open record laws and the state constitution.
It will be interesting to see if he can get that information and, of course, what he does with it.
Krakauer wants the records from the university hearings, but because they are student records, the university will not release them. He has said failure to release the records of the education commissioner (he is looking for information about how the expulsion order was reversed) is a violation of state open record laws and the state constitution.
It will be interesting to see if he can get that information and, of course, what he does with it.
Saturday, May 11, 2013
Resolution Agreement Binds Montana to Better Address Sexual Assault
The Department of Justice and the Department of Education's Office for Civil Rights recently concluded their joint investigation of the University of Montana, which had commenced last May in response to claims that the University failed to adequately address reported incidents of sexual assault on campus. In the investigation findings, the government agencies noted that the University had already undertaken many efforts to change policies, practices, and culture around sexual assault -- including, for example, the mandatory online training we'd blogged about last summer. But, they determined, these efforts did not constitute "sufficient effective action to fully eliminate a sexually hostile environment, prevent its recurrence, and address its effects." One problem was the University's confusing maze of sexual harassment and sexual assault policies -- 8 of them! -- which did not clearly coordinate with or cross reference to each other, and which use inconsistent definitions and reporting procedures. The policies failed to adequately cover the broad array of conduct that could constitute sexual harassment not rising to the level of sexual assault, nor did they adequately cover off-campus conduct.
Another problem was that the University did not distribute to students information on how to file a grievance, and it was hard to find relevant information on the university's website (some of which is filed under "human resources," implying that it does not pertain to students). The lack of clear requirements regarding grievances has created much confusion among students about whom it was necessary to report to in order to trigger a university investigation and disciplinary process.
Additionally, the government found that the university's disciplinary process was inadequate for ensuring victims' rights under Title IX. For one reason, it is lengthy -- providing perpetrators up to five opportunities to appeal before receiving disciplinary action. This violates the law's requirement to resolve sexual assault claims promptly. Also, the disciplinary process required the ongoing participation of the victim, when under Title IX, a university's obligation to investigate and respond to sexual assault is not contingent on the victim's involvement. The government also found incidents in which the University failed to take interim measures to keep victims safe, such as changing the student's academic schedule or living situation. The preponderance of evidence standard, which is supposed to govern disciplinary procedures involving sexual assault, is not consistently stated throughout the university's policy. The disciplinary procedures also give more rights, such as the right to question witnesses and the right to appeal, to the accused, when Title IX clearly requires that the victim and accused have equal rights in the disciplinary process.
To resolve these shortcomings, the University has entered into a resolution agreement, which the government is calling a "blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault," that requires the University to correct the problems identified in its policies and procedures for addressing campus sexual assault and harassment, including by creating better, more easily accessed resources for students. The university must also regularly assess the campus climate regarding sexual assault, and provide mandatory training to students to ensure that they recognize sexual assault and harassment when it occurs, and that they know how to report it. The agreement also requires the University to better train its Title IX Coordinator as well as other campus personnel who deal with sexual assault.
The University's campus police force has also entered a resolution agreement to address its shortcomings in response to reports of sexual assault. The Department of Justice's investigation of the Missoula Police Department and Missoula County Attorney's Office, for its similar alleged deficiencies remains ongoing.
The timing of this resolution corresponds to an uptick in complaints, by students, against universities for failing to adequately address campus sexual assault. With increasing public awareness and attention to the issue, it was smart of the government to offer these comprehensive findings as a "blueprint" for others to follow, since the findings against Montana are by no means unique.
Another problem was that the University did not distribute to students information on how to file a grievance, and it was hard to find relevant information on the university's website (some of which is filed under "human resources," implying that it does not pertain to students). The lack of clear requirements regarding grievances has created much confusion among students about whom it was necessary to report to in order to trigger a university investigation and disciplinary process.
Additionally, the government found that the university's disciplinary process was inadequate for ensuring victims' rights under Title IX. For one reason, it is lengthy -- providing perpetrators up to five opportunities to appeal before receiving disciplinary action. This violates the law's requirement to resolve sexual assault claims promptly. Also, the disciplinary process required the ongoing participation of the victim, when under Title IX, a university's obligation to investigate and respond to sexual assault is not contingent on the victim's involvement. The government also found incidents in which the University failed to take interim measures to keep victims safe, such as changing the student's academic schedule or living situation. The preponderance of evidence standard, which is supposed to govern disciplinary procedures involving sexual assault, is not consistently stated throughout the university's policy. The disciplinary procedures also give more rights, such as the right to question witnesses and the right to appeal, to the accused, when Title IX clearly requires that the victim and accused have equal rights in the disciplinary process.
To resolve these shortcomings, the University has entered into a resolution agreement, which the government is calling a "blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault," that requires the University to correct the problems identified in its policies and procedures for addressing campus sexual assault and harassment, including by creating better, more easily accessed resources for students. The university must also regularly assess the campus climate regarding sexual assault, and provide mandatory training to students to ensure that they recognize sexual assault and harassment when it occurs, and that they know how to report it. The agreement also requires the University to better train its Title IX Coordinator as well as other campus personnel who deal with sexual assault.
The University's campus police force has also entered a resolution agreement to address its shortcomings in response to reports of sexual assault. The Department of Justice's investigation of the Missoula Police Department and Missoula County Attorney's Office, for its similar alleged deficiencies remains ongoing.
The timing of this resolution corresponds to an uptick in complaints, by students, against universities for failing to adequately address campus sexual assault. With increasing public awareness and attention to the issue, it was smart of the government to offer these comprehensive findings as a "blueprint" for others to follow, since the findings against Montana are by no means unique.
Wednesday, August 29, 2012
University of Montana Imposes Online Training to Prevent Sexual Assault
As readers well know, the Department of Justice is currently investigating the University of Montana on charges that it failed to respond appropriately and prevent numerous incidents sexual assault in recent years, including the possibility that the University covered up or downplayed claims by women that they were raped or otherwise assaulted by members of the football team. Not surprisingly, the University is trying to change the campus climate of assault, as well as its reputation for indifference. Inside Higher Ed reported today on one such effort: new plans by the University to require students to participate in an online training in sexual assault awareness and prevention, as a condition for course registration in the spring. The training, which is 20 minute tutorial, which includes videos and a comprehension quiz, was developed by a committee that included faculty.
This first-of-its-kind intervention reportedly has some concerned about the fairness of requiring all students to participate in training to curtail a problem caused by only a few. Of course, the university has no way to identify in advance who might be involved in a sexual assault, either as a victim, a perpetrator, an accomplice, or a bystander with the ability to protect someone else. Based on the high risk of sexual assault in college generally, and the rash of assaults at Montana in particular, it seems reasonable to address the climate of assault with an intervention aimed at the community at large.
The reporter asked me about the relationship between this new requirement aimed at preventing sexual assault, and the Title IX investigation that is currently underway. Certainly the steps Montana takes today have no bearing on the question of whether school officials violated the law in the past by ignoring or suppressing reports of campus rape. But to the extent that the Department of Justice would require Montana to make changes aimed at preventing future assaults, the steps it has already taken to this end will likely count in its favor. More significantly, however, from a legal standpoint, is that the University is vulnerable to liability for future assaults if it does not take steps now to address the problem about which it is aware. To avoid being "deliberately indifferent" -- one of the elements to Title IX liability for sexual harassment and assault -- it must take steps reasonably calculated to protect students from assault. Even though this online tutorial is a new idea and as-yet-untested, it would surely seem to qualify under the 'reasonably calculated' standard. For one thing, trainings are already an accepted method of harassment prevention in the workplace context. For another, it was developed by professors with expertise in this area, who presumably consulted scientific research on the efficacy of online trainings to change community norms in other contexts. Most importantly, it seems a vast improvement on the usual "sign here to acknowledge that you've read this policy" approach many institutions use as a way of bringing students' rights and responsibilities to their attention. Certainly the training alone will not absolve Montana from liability in future cases where the university could have done more to protect a student from a particular risk of assault. But this intervention seems to be persuasive evidence that the university is not indifferent to the general risk to students that comes from a campus climate that seems to tolerate assault.
This first-of-its-kind intervention reportedly has some concerned about the fairness of requiring all students to participate in training to curtail a problem caused by only a few. Of course, the university has no way to identify in advance who might be involved in a sexual assault, either as a victim, a perpetrator, an accomplice, or a bystander with the ability to protect someone else. Based on the high risk of sexual assault in college generally, and the rash of assaults at Montana in particular, it seems reasonable to address the climate of assault with an intervention aimed at the community at large.
The reporter asked me about the relationship between this new requirement aimed at preventing sexual assault, and the Title IX investigation that is currently underway. Certainly the steps Montana takes today have no bearing on the question of whether school officials violated the law in the past by ignoring or suppressing reports of campus rape. But to the extent that the Department of Justice would require Montana to make changes aimed at preventing future assaults, the steps it has already taken to this end will likely count in its favor. More significantly, however, from a legal standpoint, is that the University is vulnerable to liability for future assaults if it does not take steps now to address the problem about which it is aware. To avoid being "deliberately indifferent" -- one of the elements to Title IX liability for sexual harassment and assault -- it must take steps reasonably calculated to protect students from assault. Even though this online tutorial is a new idea and as-yet-untested, it would surely seem to qualify under the 'reasonably calculated' standard. For one thing, trainings are already an accepted method of harassment prevention in the workplace context. For another, it was developed by professors with expertise in this area, who presumably consulted scientific research on the efficacy of online trainings to change community norms in other contexts. Most importantly, it seems a vast improvement on the usual "sign here to acknowledge that you've read this policy" approach many institutions use as a way of bringing students' rights and responsibilities to their attention. Certainly the training alone will not absolve Montana from liability in future cases where the university could have done more to protect a student from a particular risk of assault. But this intervention seems to be persuasive evidence that the university is not indifferent to the general risk to students that comes from a campus climate that seems to tolerate assault.
Wednesday, May 02, 2012
Update in Montana Case
Here is an update on the complaint filed against the University of Montana charging that it has violated Title IX by failing to properly handle numerous incidents of sexual violence against female students, including many involving members of the football team. The complaint was filed with the Department of Education's Office for Civil Rights, as we noted in a previous post. This week it was announced that the Department of Justice will be conducting an investigation. As reported by Reuters,
The Justice Department probe will examine the inner workings of the university's public safety office, the Missoula Police Department and the Missoula County Attorney's Office.
Additionally, the department will review whether the university is complying with federal laws specifically barring sex discrimination, defined as including sexual assault and sexual harassment, in education programs, officials said.
The Department of Justice has wider jurisdiction than the Department of Education, which allows it to conduct a more comprehensive investigation that is not limited to the University, but to local law enforcement as well. Such a comprehensive investigation, which as far as I know is unprecedented for addressing campus sexual violence, seems warranted in this case due to the arguably widespread incidents of rape in the community and on campus. The police received 80 reports of rape in the last three years, and 11 incidents involving students have come to light. Investigating both the university and the local police together will provide unique insight into how those two entities handle related and overlapping jurisdiction when it comes to protecting students and disciplining offenders.
Friday, April 20, 2012
OCR Complaint Filed Against University of Montana
It's reported this week that OCR will
be investigating
received a complaint filed earlier this year against the University of Montana, alleging sexual abuse and rape involving the football team. Details in the article are scarce, as the press received a redacted version of the complaint in order to protect the confidentiality of whomever filed it.
However, news out of Missoula over the last several months offers several clues as to the nature of the complaint and the likely scope of the investigation. The University of Montana football team was in the news last December, when three of its members were accused of using a date-rape drug to assault three women on campus. While one was eventually arrested and charged with rape, the University was criticized for its response, which included hiring a retired judge to conduct an independent investigation. Some saw as an unnecessary step, a delay tactic, and a public relations move. In any event, the judge's investigation eventually revealed nine cases of alleged sexual assault or attempted sexual assault involving students in the 16 months ending in December 2011. Many of these complaints were withdrawn by the victim or not pursued by the university.
Then, in February, a female student got a restraining order against the team's quarterback, and no charges were filed.
Last month, the University announced that it would not renew the contracts of its very successful head football coach Robin Pflugrad and the athletic director Jim O'Day. The University did not accuse either man of attempting to cover up a rape culture among the football team, but, reportedly, that is what many believe.
My guess is that OCR's investigation will shed some light on that very question.
However, news out of Missoula over the last several months offers several clues as to the nature of the complaint and the likely scope of the investigation. The University of Montana football team was in the news last December, when three of its members were accused of using a date-rape drug to assault three women on campus. While one was eventually arrested and charged with rape, the University was criticized for its response, which included hiring a retired judge to conduct an independent investigation. Some saw as an unnecessary step, a delay tactic, and a public relations move. In any event, the judge's investigation eventually revealed nine cases of alleged sexual assault or attempted sexual assault involving students in the 16 months ending in December 2011. Many of these complaints were withdrawn by the victim or not pursued by the university.
Then, in February, a female student got a restraining order against the team's quarterback, and no charges were filed.
Last month, the University announced that it would not renew the contracts of its very successful head football coach Robin Pflugrad and the athletic director Jim O'Day. The University did not accuse either man of attempting to cover up a rape culture among the football team, but, reportedly, that is what many believe.
My guess is that OCR's investigation will shed some light on that very question.
Thursday, January 19, 2012
University of Montana Football Players Linked to Wave of Sexual Assaults
An article in Huffington Post describes an alarming series of sexual assaults involving football players at the University of Montana. Most recently, an incident in which multiple football players are accused of drugging and raping two female students has produced felony charges and one admission of guilt. This incident has also apparently brought to light two prior allegations of rape committed by football players, that were reported to the University but which the University did not investigate or pursue disciplinary action.
The University defended its failure to respond on the erroneous belief that it is not obligated to address incidents between students that occur off campus, as well as some inexplicable belief that it is somehow prevented by law from reporting incidents of assault to local police. The university is also being criticized for following up with the football coach, but not the victims, and of helping accused football players find legal representation with a local "powerful" law firm.
An independent investigation is ongoing, which has produced preliminary findings suggesting that the University has a "gap" in its reporting of sexual assault. This week, the University hosts a public meeting on date rape. We'll have to wait and see whether this investigation and increased focus on sexual violence brings more incidents to light, and whether any of the victims pursue litigation under Title IX challenging the University's deliberate indifference to sexual assault.
The University defended its failure to respond on the erroneous belief that it is not obligated to address incidents between students that occur off campus, as well as some inexplicable belief that it is somehow prevented by law from reporting incidents of assault to local police. The university is also being criticized for following up with the football coach, but not the victims, and of helping accused football players find legal representation with a local "powerful" law firm.
An independent investigation is ongoing, which has produced preliminary findings suggesting that the University has a "gap" in its reporting of sexual assault. This week, the University hosts a public meeting on date rape. We'll have to wait and see whether this investigation and increased focus on sexual violence brings more incidents to light, and whether any of the victims pursue litigation under Title IX challenging the University's deliberate indifference to sexual assault.
Saturday, May 21, 2011
Montana Adds Softball
A while ago, we mentioned University of Montana's plans to add women's softball. By way of update, here it's reported that the Regents have approved a plan to raise the student athletic fee (by $12.50 per year) thereby confirming the funding source for Montana's softball initiative. Student government also approved the fee increase, though leaders expressed reservation that the money be earmarked for Title IX compliance.
Adding softball was the right thing to do. Women make up 51.7% of the undergraduate population at Montana, but receive only 42.7% of the athletic opportunities, in a total of 6 sports. By my calculation, Montana would have to add 76 athletic opportunities for women to achieve proportionality. Softball is a start. It certainly improving their chances of demonstrating compliance with prong 3 in the meanwhile, as the decision satisfies to demonstrated unmet interested and ability.
Adding softball was the right thing to do. Women make up 51.7% of the undergraduate population at Montana, but receive only 42.7% of the athletic opportunities, in a total of 6 sports. By my calculation, Montana would have to add 76 athletic opportunities for women to achieve proportionality. Softball is a start. It certainly improving their chances of demonstrating compliance with prong 3 in the meanwhile, as the decision satisfies to demonstrated unmet interested and ability.
Wednesday, March 23, 2011
West of the Mississippi...
Teams are being added and dropped, and schools are conference hopping.
Not sure if it's the conference hopping that is encouraging institutions to the get their houses in order in terms of Title IX compliance, but it is certainly having that effect.
The University of Montana has slightly-more-than tentative plans to add women's softball to their roster of intercollegiate sports. The state of Montana has no DI softball, which isn't especially surprising given the limitations the weather puts on spring sports, but recent survey data show that softball is the sport undergraduate women would like to see added. Though Montana administrators maintain that they didn't think they "were close to being out of compliance" they knew that they couldn't keep administering the annual interest survey and not do anything. (Not sure why they held that belief in the first place. Simply collecting data does not make one compliant.) Not sure if the NCAA held similar beliefs about Montana's compliance. In the university's last reaccreditation administrators were apparently told that adding another women's sport would be "the right thing to do." Montana is able, it seems, to read between the lines. And its plans to move to the Big Sky Conference likely pushed forward the plan for softball. The Big Sky needs one more softball-playing school in order to hold a conference tournament. But softball is still a ways off, at least three years according to the athletic director. The program is estimated to cost about half a million dollars annually so funds need to be raised, a coach hired, and players recruited.
A different conference hop is forcing another school to do the drop/add shuffle. University of Nebraska-Omaha, a DII school (except for men's hockey), is making the move to DI. It has been invited to the Summit League and given the NCAA's lifting of the ban on division hopping that will happen in June, and that conferences hold the power to invite, UNO has decided to make the leap, something they apparently have been considering for a while now. Not knowing when another such opportunity will come along, the university is making sure everything is in order for the 2012 move.
But unfortunately football and wrestling will not be coming along. The university cited the immense costs of football and the inability to bring wrestling up to DI levels without a large amount of cash as the reason for the cuts. Good news though for a couple of the so-called men's minor sports: UNO will be adding men's golf and soccer.
Not sure if it's the conference hopping that is encouraging institutions to the get their houses in order in terms of Title IX compliance, but it is certainly having that effect.
The University of Montana has slightly-more-than tentative plans to add women's softball to their roster of intercollegiate sports. The state of Montana has no DI softball, which isn't especially surprising given the limitations the weather puts on spring sports, but recent survey data show that softball is the sport undergraduate women would like to see added. Though Montana administrators maintain that they didn't think they "were close to being out of compliance" they knew that they couldn't keep administering the annual interest survey and not do anything. (Not sure why they held that belief in the first place. Simply collecting data does not make one compliant.) Not sure if the NCAA held similar beliefs about Montana's compliance. In the university's last reaccreditation administrators were apparently told that adding another women's sport would be "the right thing to do." Montana is able, it seems, to read between the lines. And its plans to move to the Big Sky Conference likely pushed forward the plan for softball. The Big Sky needs one more softball-playing school in order to hold a conference tournament. But softball is still a ways off, at least three years according to the athletic director. The program is estimated to cost about half a million dollars annually so funds need to be raised, a coach hired, and players recruited.
A different conference hop is forcing another school to do the drop/add shuffle. University of Nebraska-Omaha, a DII school (except for men's hockey), is making the move to DI. It has been invited to the Summit League and given the NCAA's lifting of the ban on division hopping that will happen in June, and that conferences hold the power to invite, UNO has decided to make the leap, something they apparently have been considering for a while now. Not knowing when another such opportunity will come along, the university is making sure everything is in order for the 2012 move.
But unfortunately football and wrestling will not be coming along. The university cited the immense costs of football and the inability to bring wrestling up to DI levels without a large amount of cash as the reason for the cuts. Good news though for a couple of the so-called men's minor sports: UNO will be adding men's golf and soccer.
Wednesday, February 16, 2011
Montana goes with prong three
A piece out of a local news outlet in Missoula, Montana focuses on how the University of Montana is choosing to comply with prong three of Title IX. Montana's Senior Associate Athletic Director Jean Gee said Montana has vowed not to cut sports, but must address Title IX issues (in terms of opportunities offered) in other ways at a school where male students comprise 48 percent of the undergraduate population and male student-athletes received 59 percent of the athletic opportunities. So Montana regularly surveys and interviews its female students about their interests and abilities in various sports. And it's not just CYA stuff. Montana administrators realize that the popularity of softball at the high school level and the lack of a DI program at a state school means Montana will have to add softball to its roster soon.
According to the associate director of the state's high school athletic association, JoAnne Austin, athletic administrators in the state are required to have a working knowledge of Title IX which appears to lead to an overtly pro-Title IX stance.
Said Austin:
"For a lot of schools, big time schools, football is king. Football is what makes them the money and I really think that Title IX keeps them in check to some extent. And I think that if Title IX were to go away, you'd start to see a slide back, and more and more money and funds being funneled into football...where you would literally probably have football only schools."
Not sure if there would be football-only schools, but I do think there would be some significant backsliding.
According to the associate director of the state's high school athletic association, JoAnne Austin, athletic administrators in the state are required to have a working knowledge of Title IX which appears to lead to an overtly pro-Title IX stance.
Said Austin:
"For a lot of schools, big time schools, football is king. Football is what makes them the money and I really think that Title IX keeps them in check to some extent. And I think that if Title IX were to go away, you'd start to see a slide back, and more and more money and funds being funneled into football...where you would literally probably have football only schools."
Not sure if there would be football-only schools, but I do think there would be some significant backsliding.
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