Axe Falls at Baylor over Sexual Assault Scandal

University football program described in report as ‘above the rules’

By Allen Smith, J.D. Jun 30, 2016

Scandal over allegations of sexual assault at Baylor results in administration shake-up.

Ken Starr, who, as an independent counsel, was the author of a damaging report about then-President Bill Clinton, became the subject of a report critiquing Baylor University's response to allegations of sexual assault brought against some of its football players.

The fallout from the university report reflects that, if a sense of commitment and urgency isn't demonstrated by senior leaders and violations of the law ensue, those at the top may face demotion or discharge.

As a result of the report's findings, Starr no longer will serve as the Waco, Texas, university's president, effective as of May 31, and will serve only as chancellor and a professor in the university's law school.

In addition, Art Briles, the school's head football coach, has been suspended indefinitely with the intent to terminate according to contractual provisions, and Ian McCaw, its athletic director, has been sanctioned and placed on probation.

Football Program an Island unto Itself

"Some football coaches and staff took improper steps in response to disclosures of sexual assault or dating violence that precluded the university from fulfilling its legal obligations," said the findings of fact in the report by law firm Pepper Hamilton, which Baylor hired to conduct an independent review of its response to Title IX compliance complaints.

Title IX states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance" except in certain circumstances. For example, it notes that only institutions of higher education, vocational education and professional education are covered and that institutions of religious organizations with contrary religious tenets are not covered.

"Football staff conducted their own untrained internal inquiries, outside of policy, which improperly discredited complainants and denied them the right to a fair, impartial and informed investigation, interim measures or processes promised under university policy," the report said. "Football coaches and staff had inappropriate involvement in disciplinary and criminal matters or engaged in improper conduct that reinforced an overall perception that football was above the rules, and that there was no culture of accountability for misconduct."

Baylor failed to take appropriate action in response to reports of sexual assault brought against some of its football players, the report added. "In certain instances, including reports of a sexual assault by multiple football players, athletics and football personnel affirmatively chose not to report sexual violence and dating violence to an appropriate administrator outside of athletics," the report said. Instead, football coaches met directly with the complainant and/or a parent and did not report the alleged misconduct.

"As a result, no action was taken to support complainants, fairly and impartially evaluate the conduct under Title IX, address identified cultural concerns within the football program, or protect campus safety once aware of a potential pattern of sexual violence by multiple football players," the report stated.

Karen Bitar, an attorney with Seyfarth Shaw in New York City, called the report "a scathing, no-holds-barred, critical document" and noted that for years there was no single Title IX coordinator for victims to report any misconduct to. Instead, she said, the athletics department had its "own system of justice that protected athletes and tried to dissuade victims from coming forward."

One Rape Victim's Complaint

Under Title IX, a school's inquiry into student sexual harassment or sexual assault must be prompt, thorough and impartial, one alleged rape victim at Baylor contended in a March 30, 2016, complaint. She faulted the school for not having a Title IX coordinator until 2014, which was after the alleged assault in 2012.

Instead, the university's chief judicial officer handled reports of sexual harassment and assault. This officer allegedly informed another rape victim that there was nothing the judiciary officer could do in response to her complaint that she had been raped by a football player. The officer also allegedly told the other rape victim that she was the sixth student to report a sexual assault by the same player. But the officer said there was nothing the school could do for the rape victim unless there was a court determination that the player had raped her. Otherwise, it would come down to a "he-said/she-said" situation, and the school could not act on it, according to the complaint.

Baylor intentionally violated Title IX by misinforming and misleading the plaintiff to believe that she had no recourse at the school for responding to her allegations, according to the March 30 complaint. The complaint also alleged that, following the student's rape, her grades dropped significantly, she was placed on academic probation and lost her academic scholarship. Bitar said that the university report will likely bolster her case.

Setting the Right Tone

"The tone at the top wasn't right" before the university decided to hire legal counsel to examine what happened, Bitar said, indicating that the school did not demonstrate an adequate commitment to comply with Title IX.

The Pepper Hamilton report recommended that the university's executive council expand its representation of departments to integrate Title IX across university functions, such as by including human resources.

It also recommended that the university take necessary HR actions for accountability and effective implementation of Title IX.

Additional members of the administration and the athletics program were dismissed, though their names weren't released to the public. Staff will engage in robust training before the start of the fall 2016 semester, according to a Baylor University press release.

"There must be vigorous enforcement of policies to protect students, and leadership at the highest levels must make clear that the university is committed to those policies at every level of the organization," said David Garland, an attorney with Epstein Becker Green in New York City and Newark, N.J.

"We, as the governing board of this university, offer our apologies to the many who sought help from the university," said Ron Murff, chair-elect of the Baylor Board of Regents. "We are deeply sorry for the harm that survivors have endured."​


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