By Ellen J. Staurowsky, Senior Writer & Professor, Sport Management, Drexel University, ejs95@drexel.edu
Issues
In Van Overdam v. Texas A&M (2018), a male swimmer argues that the University’s approach to the investigation, adjudication, and appeal of sexual assault allegations against male students at the University is riddled with gender bias effectively creating an environment that leads to a foregone conclusion that male students are responsible for sexual misconduct once accused. The lawsuit contends that sexual assault investigation procedures at Texas A&M fall short of minimum due process standards that assure accusers and accused are treated in a manner that is “adequate, reliable, and impartial”. Van Overdam claims that a result of the alleged failure of Texas A&M to uphold the mandate that all students be treated fairly and in a non-sex discriminatory fashion under Title IX, he was wrongly disciplined and suffered an interruption to his swimming career and educational pursuits as well as reputational harm.
Background
In the fall of 2015, NCAA Division I swimmer Austin Van Overdam transferred from the University of Arizona and enrolled at Texas A&M, joining the Aggies men’s swim team. In the early weeks of the semester, during the month of September, Van Overdam became acquainted with a female student named Hannah Shaw through the social search application Tinder[1]. After private messaging one another a few times, they agreed to meet at Van Overdam’s on-campus residence for a sexual encounter. Seven or eight months after their encounter, Shaw filed a complaint with the Texas A&M Student Conduct Office alleging that she had not given her consent to some of the acts engaged in and that the accused had caused her pain when he held her down by her wrists.[2]
Considering four violations of the Texas A&M Student Rules, specifically sections pertaining to sexual abuse, sexual contact, and dating violence, an administrative hearing panel listened to testimony offered by both parties during a student conduct conference. The panel found, using a preponderance of the evidence standard, that information shared in the hearing by Shaw supported a finding of responsibility on Van Overdam’s part on one of the four charges (penetration without consent). Explaining the rationale for the one finding of responsibility in a letter regarding the outcome of the conference to Shaw, the Program Coordinator for Student Conduct Office wrote, “The panel believes the information provided by the complainant is more credible due to consistency and plausibility when compared to the information from the charged student” (Program Coordinator Letter, 2016). Van Overdam’s subsequent appeal was unsuccessful.
Van Overdam was suspended from the institution immediately following the finding of responsibility on June 21, 2016 through December 16, 2016. Upon his re-enrollment in the spring of 2016, he was required to serve a semester-long probationary period and to participate in education on the topic of sexual well-being and consent through the Consensual Language, Education, Awareness, and Relationships (CLEAR) office.
According to Van Overdam’s complaint and a press release issued by his attorney, Van Overdam initially intended to quietly comply with the sanctions. Ms. Shaw, however, took to Twitter in June of 2018, sharing her discomfort with him being back on campus as part of the #MeTooMovement[3]. Van Overdam sought relief through Texas A&M’s Student Conduct Office alleging that Shaw retaliated against him through public disclosure of her concerns on Twitter. When Texas A&M administrators dismissed his retaliation complaint, Van Overdam filed suit.
Allegations of Disparate Treatment & Disparate Impact
According to the lawsuit, Van Overdam claims that he was “…stigmatized as a result of his gender while Shaw was viewed as a ‘victim’ even before any adjudication of the sexual misconduct allegations against Van Overdam took place” (Van Overdam v. Texas A&M, 2018, p. 4). Describing the nature of the testimony offered before the student conduct conference as being nothing more than a “swearing match” where parties disagreed, Van Overdam asserts that there was no rational explanation to support a finding that Shaw’s testimony was any more reliable or trustworthy than his. The sole distinguishing factor between the two, Van Overdam argues, was the fact that his accuser was a female and her testimony was given weight solely for that reason, constituting disparate treatment under Title IX. Citing that in all instances males are accused of sexual misconduct at Texas A&M, Van Overdam further argues that the sexual misconduct disciplinary process in place has a disparate impact on male students.[4]
This alleged sex discriminatory treatment and impact according to Van Overdam has deprived him of immediate and long-term benefits deriving from his educational experience. In addition to a denial of an opportunity to go to school and pursue his academic interests without the burden of being labeled a rapist, Van Overdam reports that he has lost scholarship funding and faced difficulties in transferring to other institutions. He further argues that the manner in which he has been treated by Texas A&M has resulted in a loss of career opportunities and negatively impacted his future earnings potential. More generally, Van Overdam claims that he has suffered humiliation and embarrassment along with mental and emotional distress.
Ongoing Issues at Texas A&M
In the aftermath of Shaw’s posting expressing frustration that Texas A&M’s policies led to a circumstance where her alleged attacker was permitted to return to campus and compete on the swim team with little consequence, and his decision to file a lawsuit claiming that he had been subjected to sex discrimination in the adjudication of the case, commentary in the public sphere escalated. A graduate of Texas A&M, Abbie Hillis, who alleges that she was raped by a male student in 2010, used social media to gather similar stories from other female students (The Associated Press, 2018). This then led to a petition, signed as of this writing by more than 1800 people, calling for Texas A&M administrators to review its procedures to ensure that victims of sexual assault are supported; to dismiss rather than suspend students who are found to be responsible for sexual abuse; to ensure that athletes are not given preferential treatment; and to bar athletes from continuing to compete in their sports during investigations (Aggie Students, 2018).
Brenda Tracy, a sexual assault victim’s advocate who has worked extensively with college and university athletic departments in recent years, wrote on Twitter: “@TAMU you committed to ‘Step In Stand Up’ but when title ix finds an athlete responsible for rape you suspend him for ONE semester and let him back on the swim team? This is UNACCEPTABLE & does nothing to support a safe culture on your campus or in athletics” (Brown, 2018a).
In response to the calls from all parties on the issue of how sexual misconduct is handled at Texas A&M, president Michael Young issued three statements (Oliver, 2018). In the most recent one dated June 21, 2018, the University announced the formation of an internal task force to review policies and the commissioning of an external third-party review.
References
Aggie Student. (June 2018). Demand Texas A&M administrators be accountable and keep sexual abusers off our campus. Change.org. Retrieved from https://www.change.org/p/demand-texas-a-m-administrators-be-accountable-and-keep-sexual-abusers-off-our-campus
Brown, T. (2018a, June 12). Sexual assault survivor, advocate speak out on Texas A&M allegation. The Eagle. Retrieved from https://www.theeagle.com/news/a_m/sexual-assault-survivor-advocate-speak-out-on-texas-a-m/article_357f2610-6ea3-11e8-b6f5-374c0b21dc6e.html
Brown, T. (2018b, June 20). Texas A&M swimmer files Title IX lawsuit against university. The Eagle. Retrieved from https://www.theeagle.com/news/texas-a-m-swimmer-files-title-ix-lawsuit-against-university/article_7a6eba84-7343-11e8-a248-7ff078ee31d9.html
Garner, D. (2018, June 14). The #MeToo Movement targeting Texas A&M University. Education Reviews. Retrieved from http://www.educationviews.org/the-me-too-movement-targeting-texas-am-university/
Langone, A. (2018, March 22). #MeToo and Time’s Up founders explain the difference between the 2 movements — and how they’re alike. Time. Retrieved from http://time.com/5189945/whats-the-difference-between-the-metoo-and-times-up-movements/
Oliver, B. (2018, June 22). Texas A&M president announces review of sexual assault investigations. WTAW.com. Retrieved from http://wtaw.com/2018/06/22/texas-am-president-announces-review-of-sexual-assault-investigations/
Program Coordinator. (2016, June 21). Letter to Hannah Shaw. College Station, TX: Texas A&M Student Conduct Office. [initially posted to Twitter and on file with author]
Seidman, G. (2017, June 11). Is Tinder really a hookup app? Psychology Today. Retrieved from https://www.psychologytoday.com/us/blog/close-encounters/201706/is-tinder-really-hookup-app
Student Conduct Office (20188). Website. Retrieved from https://studentlife.tamu.edu/sco
Texas A&M Sports Information. Bio — Austin Van Overdam. Retrieved from https://12thman.com/roster.aspx?rp_id=5115
The Associated Press. (2018, June 14). Texas A&M criticized for handling of sex assault claims. The New York Times. Retrieved from https://www.nytimes.com/aponline/2018/06/14/us/ap-us-texas-am-sex-assault-allegations.html
Van Overdam v. Texas A&M University. (2018). Case 4:18-cv-02011. Retrieved from https://cdn.swimswam.com/wp-content/uploads/2018/06/Van-Overdam-lawsuit-announcment.pdf
[1] Seidman (2017) describes Tinder as a mobile dating app that is designed to facilitate meetings between singles within a particular geographical location. In the complaint filed by Van Overdam, Tinder is credited with fueling a “hooking up culture”. While Tinder is known in part for this, research reported by Seidman (2017) indicates that 5% of Tinder users identify “hooking up” as the reason they are on the site.
[2] Shaw appeared on the NBC Today Show on June 13, 2018. That interview can be found here. https://www.today.com/video/texas-a-and-m-under-fire-after-allegations-of-sexual-assault-against-athletes-1254650947780
[3] Langone (2018) explains that the #MeTOO Movement is a movement started more than a decade ago to break the silence around sexual violence given a national spotlight in the aftermath of public testimonies from numerous alleged victims that movie mogul Harvey Weinstein regularly sexual assaulted and harassed women working in the film industry.
[4] Van Overdam offers this as a matter of belief with no documentation.
