It is impossible to get away from this story. That's because the media, having failed to take notice of the story months ago, is now furiously trying to make story angles out of the whole sordid mess.
First, the media is incensed by Baylor's apparent silence on the issue. This seems to be nothing more than a pathetic attempt to deflect criticism. Reporters should have reasonably suspected something when a highly touted transfer didn't show up on the roster, or when a player whose name was closely associated with Baylor was indicted way back in 2014. Instead, the local and national press were content to ignore the story until it was too big to ignore. Now the media is going after its pound of flesh, but this is the wrong approach.
For one, Baylor owes no duty of candor to the general public, and not just because it's a private school. Institutions have a vested interest in not raising certain issues on their own. The reputation stakes and the cost of avoiding liability are too high to do otherwise. For another, the press has the right to information, but it does not have the right to be informed. Having failed to investigate and report, the media should not now accuse Baylor of maintaining silence in the face of a possible firestorm.
Second, the media's reaction to the inconsistencies in statements made by Art Briles and former Boise State head coach Chris Petersen is entirely misplaced (Jason Kirk, SB Nation). It threatens to turn public censure into a witch hunt, with the Texas media going so far as to suggest Briles be fired (Kevin Sherrington, Dallas Morning News). It's almost as if we need a scapegoat, and at this point, Briles will do. We want the problem to be a sports problem, i.e. if only Baylor had done its due diligence, if only the school had not ignored those giant red flags, if only college sports would stop privileging winning over everything else, we would all be safer on campus. But this is a red herring and the real problem is much bigger than college sports.
I'm not giving Briles a pass here. His statements reflect incredible tone-deafness at best, and at worst, total willful blindness. But he should not be the target of this story. All this focus on whether Ukwuachu should ever have been at Baylor ignores the real problem: Baylor may not have met the basic requirements of Title IX, the central premise of which is relatively simple--student-on-student sexual harassment or violence creates a hostile environment.
When Jane Doe first made a complaint of sexual assault at Baylor, she automatically triggered certain requirements under the law. Compliance with Title IX requires an institution to do at least the following:
Launch a prompt investigation
Baylor conducted an investigation and did so promptly after Jane Doe’s initial complaint. The question here is whether that investigation was sufficiently thorough. Here's what we know so far:
- Bethany McCraw, Baylor’s associate dean for student conduct, only interviewed the complainant, a friend of hers, Ukwuachu’s roommate, and Ukwuachu himself. She did not interview either the nurse or the Baylor psychologist who examined Jane Doe.
- She had access to text messages exchanged by the complainant and Ukwuachu which clearly showed that Jane Doe had rejected Ukwuachu’s advances.
- A polygraph test was administered to Ukwuachu, despite the fact that polygraph evidence is so unreliable as to be inadmissible in Texas courts.
- McCraw requested a report from the nurse who examined Jane Doe after the assault. The complainant did not provide the report because she did not yet have a copy nor did she provide written consent at the time. From the facts, it's difficult to determine whether McCraw ever requested the report again from the complainant or from any other person or agency. Federal and state privacy protections as well as university policy may have made it difficult for McCraw to obtain the report, but Baylor certainly could have obtained the needed written consent/waiver from Jane Doe or even a copy of the report after the initial request. It is not clear this happened, despite the ongoing obligation to investigate and resolve the complaint.
Eliminate or remedy the "hostile environment"
Schools have multiple avenues available to remedy harm and to provide further protection to the complainant under Title IX. For example, a school may issue a no-contact directive to the alleged perpetrator which requires that the complainant and the alleged perpetrator not be in the same classes, sections, dorms, etc. A school may also discipline the alleged perpetrator, and are not required by Title IX to wait for the conclusion of any ongoing criminal proceedings. Here's what we know so far:
- A no contact directive was probably issued. The facts (as reported in the original Texas Monthly article and later by Deadspin) suggest that Jane Doe was encouraged to switch classes and sections to avoid Ukwuachu. In other words, Baylor may have shifted the burden of remedying the hostile environment to the complainant.
Prevent retaliation of any form
Under Title IX, a school may not take action against the complainant for making a complaint.
- According to reports, Jane Doe, a student-athlete, claimed that her scholarship was reduced and she ultimately had to transfer to another school.
I wouldn't go so far as to say Baylor subjected the complainant to retaliation. It is entirely possible that her scholarship was reduced for performance-related reasons. However, given the diagnosis of PTSD, it's hard to see the convergence of the scholarship reduction with the original assault and complaint as mere coincidence. If Jane Doe’s scholarship was reduced because of the assault, even indirectly, it could be considered retaliation.
In view of the above, it's obvious that Baylor did something. That the school could have done more is also obvious, at least to me. The question to ask then is whether any other school would have done differently.
This story probably plays out in a similar way across college campuses everywhere on a regular basis. College administrators are charged with protecting the institution that employs them, and any protection afforded to students is just incidental. Forced to comply with federal laws, most administrators will do the bare minimum, just enough to comply with the letter of the law while largely ignoring its stated intent.
Colleges do not have much incentive to do otherwise. At best, the institutions will submit to an internal review of policies and then institute new policies. But most colleges need their feet held to the fire to change existing procedures. For example, following the alleged assault and later suicide of swimmer Sasha Menu Courey, Missouri submitted to an independent review process that revealed several problems in the school’s policies, including failure to conduct any internal investigation (George Howell and Paul Vercammen, CNN). That review led to a massive overhaul of reporting and investigation procedures at the school (Marcus Wilkins, Mizzou Magazine). At Oregon, the administration revisited its handling of Title IX investigations, but only after an alleged victim sued the school for violating her civil rights (Kevin Vaughan, FOXSports).
There is a much bigger story here than whether Briles and/or Petersen are lying. That should not stoke the fires of internet outrage as much as the fact that most universities faced with similar circumstances don't seem to do enough to protect students. We should ask the hard questions and stop pretending this is a problem with collegiate sports alone. We should ask if schools ought to police themselves, especially when self-interest might make that policing perfunctory. If not the schools, who should take up this mantle? Is law enforcement better suited to this role?
I have no answers, only a plea not to look away from the real problem.
(Ed. note: the original version of this article inadvertently noted the date of Ukwuachu's indictment as 2013 rather than 2014.)