By Ellen J. Staurowsky, Ed.D., Professor, Drexel University
On August 21, 2015, a jury in McClennan County, Texas found former Baylor University defensive end Sam Ukwuachu (a player on scholarship who never saw a down there) guilty of second degree sexual assault of a female student who had been at one time on an athletic scholarship at the same university. Ukwuachu received a sentence of 180 days in jail, 10 years of probation, and 400 hours of community service for his crimes.[1]
In the aftermath of the verdict, questions have been raised about how Baylor and its administration managed the case and whether they did all that they could to ensure the safety of the students on their campus. The focus of criticism directed at Baylor has centered primarily on two key issues.
The first issue was Baylor’s decision to allow Mr. Ukwuachu to transfer from Boise State University, even after he was dismissed from the team for undisclosed disciplinary reasons and without consideration for his troubled past, which included alleged violence against his girlfriend, depression, and substance abuse. While Baylor will most likely continue to face questions regarding their willingness to accept Ukwuachu while other schools, such as the University of Florida declined, the second issue, which might be even more difficult for the University to address, was its handling of the case in light of Title IX requirements.
During the course of the trial, Ukwuachu’s lawyer, Jonathan Patterson Sibley, sought to include as evidence a review of the case that Baylor had conducted under the auspices of the Office of Student Conduct after it happened in October of 2013, wherein Baylor authorities concluded that there wasn’t enough evidence to pursue the investigation further. The internal investigation of the case, however, was found so deficient the judge would not permit the jury to hear that the University had not found Ukwuachu to be culpable under Title IX’s preponderance of the evidence standard, a lower standard of proof that requires only a 51 percent likelihood of wrongdoing on the part of the accused. Ultimately, the jury found him guilty of sexual assault beyond a reasonable doubt, a stricter standard, raising questions regarding the veracity of Baylor’s efforts.
Among the things that may be examined as time goes on is Baylor’s institutional history — both past and present — with Title IX. And there are some interesting twists and turns that emerge there. A window into that history is revealed, interestingly enough, through Ukwuachu’s attorney and his family ties to the University and athletic department. Sibley, who received both his undergraduate degree and law degree from Baylor, is the grandson of Jack Patterson. Patterson served as the athletic director at Baylor from 1971 to 1980, in the years following the passage of Title IX.[2]
An Abbreviated History of Baylor’s Relationship with Title IX
In her book Before Brittney, A Legacy of Champions, former student, athlete, coach, and professor at Baylor, Nancy Goodloe (2014), chronicles the evolution of women’s athletics on that campus. Baylor’s relationship with Title IX started out as one of outright resistance. Over time, Baylor’s approach to Title IX as documented by Goodloe suggests a long pattern of non-compliance and either misunderstandings about what the law required or disregard for it.
Shortly after Patterson was hired as the athletic director at Baylor to oversee the men’s athletic department, the administration moved to place the women’s physical education and athletics program under his direction as well. As characterized by Goodloe, Baylor’s president, Abner McCall, was committed to having only one person in charge of athletics, “And that person was not going to be a woman” (p. 144). In January of 1976, McCall wrote to the Director of the Office for Civil Rights seeking to be exempted from Title IX on the grounds that the regulations calling for the eradication of sex discriminatory treatment in education were in conflict with the religious tenets espoused by the Baptist faith and the Southern Baptist Convention (accommodations for pregnant students might sanction pre-marital sex, equitable distribution of scholarship assistance was in direct contradiction to the practice of awarding financial aid only to male students, and a concern that the University would be compelled to consider the hiring of female candidates in the religion department despite the fact that preference should be shown to Baptists ministers, a role reserved at the time only for men). Baylor’s opposition to Title IX would surface again in the mid-1980s, when they supported Grove City College in arguing that Title IX’s reach improperly violated separation of church and state and overreached by applying more generally to institutions overall rather than narrowly applying to individual programs.[3] The U.S. Supreme Court’s decision in Grove City v. Bell in 1984 would eventually be reversed with the passage of the Civil Rights Restoration Act of 1988.
Equitable treatment and retaliation would be the substance of a lawsuit filed by dismissed Baylor women’s basketball coach Pamela Bowers in 1995, which relied on Title IX as a cause of action. In that case, Bowers alleged that after having been at Baylor for 15 years she was released from the program because she fulfilled her obligation under NCAA rules to report rules violations that were occurring, not in her program, but in the men’s basketball program. In 1994, Baylor head men’s basketball coach Darrell Johnson would be fired with a federal indictment following shortly thereafter (Gorum, 1994). There was speculation that the University’s settlement of the $4 million lawsuit with Bowers may have been prompted by that pending announcement that the Southwest Conference was launching an investigation, a possible NCAA investigation was anticipated, and looming federal indictment (Gorum, 1994; McCallum, 1994).
Baylor’s Title IX Record in 2015
In May of 2014, Baylor’s president, Kenneth Starr appeared on a panel called by the U.S. House Education and Workplace Committee to discuss the implications of college football players unionizing (Staurowsky, 2015). In the course of that hearing, Mr. Starr was asked a question regarding the Title IX implications of college football players seeking to be recognized as employees with the right to collectively bargain, Mr. Starr stated that “there are very serious issues with respect to Title IX in particular.” He went on to say that the recognition of scholarship football players as employees would create a “very serious” imbalance under Title IX. He never explained why, but just simply planted that conclusion and moved on. (U.S. House…, 2014).
Further on in his testimony, Mr. Starr was questioned by U.S. Representative John Tierney (D-MA) regarding Baylor’s compliance with Title IX. In response to Tierney pointing out that Baylor was not awarding athletically-related financial aid to female and male athletes proportional to their rates of participation, with males receiving a disproportionally high amount, Mr. Starr testified:
“Well, that is a very dynamic and fluid process, so it may change from year to year, but if there is in fact a disparity, and I accept what you’ve said, it has to be addressed, so we have to come forward with explanations as to why there may be a temporary disparity. We recently created two new women’s sports with scholarships in order to address the disparity, so we have for example created equestrian with a number of scholarships for women. We have created acrobatics and tumbling” (U.S. House, 2014, 1:50.00 into the hearing).
In a follow up, Tierney asked Mr. Starr:
“Are you saying, you believe this is a temporary issue, you’re saying this isn’t a year to year thing, are you saying that with some knowledge of the facts, or are you just guessing that’s the case?” (U.S. House…., 2014, 1:15.31 into the hearing).
Mr. Starr’s response:
“Well, I don’t know the specifics of those, that specific disparity, so that is information to me. What I do know is the academic department, the athletic department does have to focus on this with our Title IX compliance officer, we have to have a Title IX compliance officer, who reviews all these kinds of issues to determine whether they are….”
The exchange between Congressman Tierney and Mr. Starr points to the vulnerabilities Baylor may have given the scrutiny of late following the revelations regarding the Ukwuache situation for several reasons.
First, an analysis of available Equity in Athletics Disclosure data for the decade between 2004-2005 and 2013-2014 reveals several trends in Baylor’s allocation of athletic scholarships that are problematic from a Title IX perspective. While Title IX regulations often provide considerable leeway to schools in terms of how they can comply, the standard for the allocation athletic scholarship assistance to athletes is clear. “Title IX regulations require an allocation within one percent of what the representation for males and females are within the athlete population (in theory, if there are 50 percent female athletes, the allocation of existing athletically related financial aid should be within one percentage point of 50 percent – either 49 percent or 51 percent)” (Staurowsky, 2015) . As shown in the table below, the discrepancy noted by Tierney was not a “temporary” issue but was a persistent trend that had gotten worse not just during the decade, but worse during the time that Mr. Starr was president of the institution. Further, these were not small discrepancies that might be accounted for with modest fluctuations in athlete movement within the program. These were double digit discrepancies that ordinarily suggest that there is a Title IX violation.
Second, Mr. Starr’s claim that Baylor had added equestrian and acrobatics and tumbling to help the Title IX profile within the athletic department sends up other red flags. Equestrian may have been created to expand the number of opportunities available within the athletic department for female athletes, but that sport had been added in 2006 (Staurowsky, 2015). The disproportionate allocation of scholarship dollars at Baylor that favored male athletes was not affected by the addition of equestrian. Male athletes increasingly received a greater portion of athletically related financial aid after equestrian was added (see table below).
Third, when Baylor’s pattern of participation is examined closely, there are other signs of possible irregularities. According to 2013-2014 EADA data, Baylor reported having 27 men on its women’s basketball team. While the use of male practice players have been an accepted practice and that by itself is not a Title IX violation, the fact that they report more men than women on their women’s basketball team (13 women; 27 men) is highly irregular (Staurowsky, 2015).
And fourth, equestrian and acrobatics and tumbling were interesting choices to use in expanding athletic opportunities for female athletes in an effort to comply with Title IX. In the case of equestrian, the NCAA defines it as an “emerging sport,” meaning that it is a sport “recognized by the NCAA that is intended to help schools provide more athletic opportunities for women, more sport sponsorship options for institutions and help that sport achieve NCAA championship status.” In 2014, equestrian was dropped from the NCAA’s list of emerging sports for women because there had not been sufficient growth to warrant an NCAA championship. NCAA rules had required that after 10 years there would be at least 40 programs that were offering the sport. In the fall of 2014, there were only 19 equestrian programs with 719 participants competing. The National Collegiate Equestrian Association (NCEA) mounted a successful campaign to put off the NCAA’s decision temporarily, but now faces the prospect of having to continue to grow the sport, something they had not been able to do in the decade previous.
The building of Baylor’s Title IX compliance plan around equestrian was risky enough. However, it took an even riskier path electing to sponsor acrobatics and tumbling, listed in the EADA report as “gymnastics.” Although the NCAA recognizes gymnastics, it has not, heretofore sanctioned acrobatics and tumbling. The governing body for the sport, the National Association of Collegiate Acrobatics and Tumbling (NCATA, 2015) has 12 members, none in the Big 12 (which is Baylor’s conference), and only one other NCAA Division I program (University of Oregon). Others include Division II institutions such as Gannon University and Division III Adrian College. Whether Baylor could defend offering a women’s sport that includes competition against Division II and III opponents as being comparable to the level of competition that programs within a major conference typically provide might prove to be another problem.
Conclusion
In the weeks ahead, Baylor may be called upon to explain the process they used in fulfilling their obligations under Title IX that goes beyond the materials posted to their website (Q & A…, August 24, 2015). With this history, Baylor may be particularly vulnerable to conjecture that the case was mishandled and that the victim did not receive the kinds of protections she deserved prior to or after the assault took place. Because she was a female athlete, and she had her scholarship reduced after the incident occurred (something that might trigger an NCAA investigation as well as an OCR investigation), Baylor may face other questions to be answered.
References
Flannery, R. (2014, October 23). BU will hire a Title IX coordinator this semester. Baylor Lariat. Retrieved from http://baylorlariat.com/2014/10/23/bu-will-hire-a-title-ix-coordinator-this-semester/
Fogelman, L. (2014). President Starr appoints Dr. Juan Alejandra Jr. as vice-president for governance and risk and chief compliance officer. Baylor University Media Communications Press Release. Retrieved from http://www.baylor.edu/mediacommunications/news.php?action=story&story=149898
“Funeral services set for former Baylor AD Jack Patterson.” (1996, December 18). Press release. Retrieved from https://www.baylor.edu/mediacommunications/news.php?action=story&story=1460
Henderson, W. (2005). On the nomination of Judge John G. Roberts, Jr., to be Chief Justice of the Supreme Court of the United States. Testimony before the U. S. Senate Judiciary Committee. Washington, DC: The Leadership Conference. Retrieved from http://www.civilrights.org/advocacy/testimony/henderson-roberts.html?referrer=https://www.google.com/
Goodloe, N. (2014 ). Before Brittney: A legacy of champions. Neche, ND: Friesen Press.
It’s On Us Baylor. (2015). Facebook page. Retrieved from https://www.facebook.com/ItsOnUsBU
Kerr, L. (2014, October 16). NCAA to drop women’s equestrian as emerging sport in 2017. Sport in Law. Retrieved from http://sportinlaw.com/2014/10/16/ncaa-to-drop-womens-equestrian-as-emerging-sport-in-2017/
Kirk, J. (2015, August 21). A timeline of the Baylor sexual assault scandal. SBNation.com. Retrieved from http://www.sbnation.com/college-football/2015/8/21/9185837/baylor-football-player-sam-ukwuachu
Luther, J., & Solomon, D. (2015, August 20). Silence at Baylor. The Texas Monthly. Retrieved from http://www.texasmonthly.com/article/silence-at-baylor/
McCallum, J. (1994, November 28). Paper trail: Six coaches are among those indicted in a federal probe of the Baylor basketball program. Sports Illustrated. Retrieved from http://www.si.com/vault/1994/11/28/132735/paper-trail-six-coaches-are-among-those-indicted-in-a-federal-probe-of-the-baylor-basketball-program
NCATA. (2015). National Collegiate Acrobatics and Tumbling Association website. Retrieved from http://ncata.org.
“Patty Crawford, Title IX coordinator.” (2015). Retrieved from http://www.baylor.edu/titleix/index.php?id=873089
Post., N. (2014). Baylor University Equity in Athletics Disclosure Act Report: 2012-2013.
“Q & A concerning procedures for investigation of allegations of sexual assault.” (2015, August 24). Waco, TX: Baylor University. Retrieved from http://www.baylor.edu/titleix/index.php?id=925735
Reyes, S. (2015, August 21). Title IX coordinator is taking steps to help Baylor fight against sexual discrimination. Baylor Lariat. Retrieved from https://baylorlariat.com/2015/08/24/title-ix-coordinator-is-taking-steps-to-help-baylor-fight-against-sexual-discrimination/
Staurowsky, E. J. (2015). The politics of Title IX and college athlete employees. Presented at the College Sport Research Institute Conference, University of South Carolina, Columbia, SC.
The Spelman & Johnson Group. (2014, July). Position specification — Baylor University — Title IX coordinator. Retrieved from http://www.spelmanandjohnson.com/higher-education-professionals/wp-content/uploads/2014/07/sjg-position-specification-baylor-title-ix-final.pdf
U.S. House Education and the Workforce Committee. (2014, May 14). Unionizing student athletes. CSPAN.org. Retrieved from http://www.c-span.org/video/?319264-1/unionizing-student-athletes
Watkins, M. (2015, August 25). Baylor may face legal fallout from rape case. The Texas Tribune. Retrieved from https://www.texastribune.org/2015/08/25/football-rape-case-presents-possible-legal-minefie/
Witherspoon, (2015). Baylor football player convicted of sexual assault. WacoTribune.com. Retrieved from http://www.wacotrib.com/news/courts_and_trials/baylor-football-player-convicted-of-sexual-assault/article_00adce9a-be02-515c-ad4e-f8e5149df707.html
[1] The jury imposed the 10 years of probation and community service; the judge added the jail time.
[2] It was Patterson who hired Grant Teaff as the Baylor head coach who would eventually become athletic director at Baylor and then the long-time executive director of the American Football Coaches Association. Teaff let his position just before a major investigation into the men’s basketball team in 1995.
[3] The position taken by Grove City was one supported by now Chief Justice of the U.S. Supreme Court when he served as Special Assistant to the Attorney General while working in the U.S. Department of Justice during the Ronald Reagan years. Roberts would eventually work for Kenneth Starr as his deputy during the time that Starr served as the Solicitor General (1989-1993). According to Wade Henderson, Executive Director, Leadership Conference on Civil Rights (2005), it was during that time that Roberts again took a position that would have seriously weakened Title IX. “In Franklin v. Gwinnett County School District, Roberts co-authored a brief in which he argued that a high school student could not obtain damages under Title IX for years of sexual harassment and sexual abuse by her coach. His overly restrictive view of proper remedies under Title IX was rejected unanimously by the Supreme Court, which found that sexual harassment is an intentional violation of Title IX and that its victims can recover money damages. Roberts’ position in Franklin , and his restrictive views on Title IX in general, raise serious questions about whether he would allow women to fully vindicate their legal rights. These concerns would apply to victims of racial and disability-based discrimination seeking redress under Title VI or section 504 of the Rehabilitation Act, which are parallel in structure to Title IX, as well (Henderson, 2005).
