By Ellen J. Staurowsky, Ed.D., Professor, Drexel University
In August of 2014, reporters and photographers were invited to tour Baylor’s newly renovated McLane Stadium, the home of its highly ranked football team. Described as the kind of venue that a coach could hardly imagine, head football coach Art Briles declared: “I dreamed too small. I envisioned something, but my visions weren’t reality. The reality is much grander, much better and more magnificent. It’s an unbelievable facility” (Carlton, 2014). While he may have dreamed small, the price tag for those renovations was a cool $266 million, a large amount of money for a religious institution competing with the likes of Texas A & M and Oklahoma, programs that invested $450 and $400 million respectively on similar upgrades.
From the President’s Suite at McLane overlooking the Brazos River in the fall of 2014, the prospect of another football season unfolding might have appeared bright but the subtext signaled pressure to produce and compete at a high level in the national spotlight. As the headline from The Dallas Morning News queried, could the football team live up to it? (Carlton, 2014). There was a hidden poignancy to that question given the indictment of Sam Ukwuachu, a transfer football player from Boise State, who had allegedly assaulted another athlete, a first year female soccer player who was also on scholarship, by a McLennan County grand jury earlier that summer. The University’s internal Title IX investigation into the matter yielded a result that held the door open for Ukwuachu to play and provided no relief for the accuser. The local prosecutor was left to argue that the available evidence supported a conclusion that a crime had occurred.
The prominence of the team and the high financial stakes associated with a major football power provides context to examine the actions taken by Baylor through a lens of damage control. Were the actions taken by Baylor during this time period — from October of 2013 through September of 2015 sincere attempts to move with the current of what was happening across the landscape of higher education as they turned their attentions to hiring a Title IX staff or were those efforts really about public relations? After all, Baylor has a familiarity with tragic events that have happened in and around their athletic department. From the academic fraud of the 1990s in the men’s basketball program to the grim cover up by the head men’s basketball coach, Dave Bliss, of the murder of Patrick Dennehy by a teammate in the early 2000s (McCallum, 1994; Wise, 2003), more allegations of criminality within the program would not have been welcome news.
The Timing of Baylor’s Renewed Efforts in the Area of Title IX
As scrutiny intensifies, Baylor’s public assurances of a strong commitment to Title IX and to fostering a responsive culture to sexual assault on its campus labor under the timing of their recent hiring of a Title IX compliance staff. The assault of the female soccer player, referred to in court as Jane Doe, by Ukwuachu occurred in October of 2013. Eight months later, in June of 2014, he was indicted by a grand jury on two counts of sexual assault. The finalization of position specifications for a Title IX coordinator occurred in July of 2014, a month after the indictment.
In August of 2014, Baylor’s president and chancellor, Kenneth Starr, participated in a panel on intercollegiate athletics sponsored by the Big 12 Conference in New York City. During the general discussion regarding college sport reform and what would happen should college football and basketball players be recognized as employees, Starr raised concerns about the potential negative impact this would have on Title IX, emphasizing the moral and legal obligations universities have to “take care of all of their student-athletes”. Later in the program, when the topic had turned to concerns regarding how college campuses were handling sexual assaults, Starr said,
“…we learned long before Senator McCaskill’s very important report[1] that there is a vital need for a system of checks and balances. So, that is a question that university governance has to ask itself; obviously, to the athletic department and the athletic director. Do we have the kind of structure and system in place to make sure so that these kinds of profoundly serious charges are fully and fairly investigated in a professional way and without casting any aspersions on any program at all, one wonders when in fact it is the investigation within the department itself and may find it very difficult under those circumstances to bring the kind of dispassionate and independent judgement that you need to make sure that there is fairness to all concerned, beginning with the victim” (“Big 12…”, August, 2014, 1:47.00 into video).
An eventual hire for the Title IX coordinator position took place in November of 2014 (“Patty Crawford…”, 2015), with two Title IX investigator positions filled in February and April of 2015. [2] In a document developed by higher education search firm, The Spelman & Johnson Group (2014), Baylor’s Title IX compliance efforts had been dispersed around campus. As described in the history of that position, ‘Baylor University has not had an office solely focused on Title IX oversight. Title IX responsibilities have been managed by a variety of individuals in several university offices, with Human Resources having primary coordinating responsibilities” (p. 4, para. 7). Responding to that description, a staff attorney for the Texas Association Against Sexual Assault, Chris Kaiser said, “that’s a really bad approach” (as quoted in Watkins, 2015).
Sexual Assault Prevention Training After Ukwuachu Conviction
Just as the timing of the hiring of a Title IX compliance staff at Baylor gives the appearance of a calculated public relations move, so too does the push on campus to focus on sexual assault during and in the immediate aftermath of the Ukwuachu trial. In July of 2015, Baylor developed a Facebook page promoting the fact that they joined the national It’s On Us Campaign, a White House initiative undertaken to create awareness regarding sexual assault on college campuses. They were slow to do so, however, given the fact that the campaign had been underway since September of 2014. On the day that Ukwuachu was sentenced, Baylor’s campus newspaper, The Lariat, featured a story about the steps Baylor was making to fight against the growing national problem of sex discrimination accompanied by a photo of a smiling Patty Crawford, the Title IX coordinator.
The article makes no mention that a Baylor student who had just completed his undergraduate degree there the previous May and had been expected to play on the football team in the fall was on trial for assaulting another Baylor student or had been convicted that day. A reference in the article to the U.S. Department of Education’s (DOE) issuance of a Dear Colleague letter outlining institutional responsibilities under Title IX regarding sexual assault somehow alludes the fact that the DOE letter was sent in 2011. By August 25, a photo of nine female Baylor students (and/or staff) with their backs to the camera wearing t-shirts with “It’s On Us” printed in large block letters, is retweeted on the White House’s campaign Facebook page (a second message on that same site would follow). All Baylor athletes were required after Ukwuachu was convicted to participate in a 90-minute violence prevention program (Halliburton, 2015).
A Comprehensive Internal Inquiry Leads to Recommendation for a Thorough & Independent External Investigation
Also on the day of Ukwuachu’s sentencing, Jeremy Counsellor, professor of law and faculty athletics representative was asked to conduct “… a comprehensive internal inquiry into the circumstances associated with this case and the conduct of the offices involved”, delivering that report to President Starr (“Statement from Baylor…”, August 21, 2015). Seven days later, on August 28th, the University announced the results of the review, which led President Starr to recommend to the Baylor Board of Regents that the institution “retain the services of outside counsel to investigate thoroughly these matters and recommend continued improvements” (“Baylor University….”, August 28, 2015). In addition to the independent investigation, Starr announced the creation of a new position that would be housed in the athletic department that
“… has the authority and oversight of all student-athlete behavior. This officer-level position will report directly to the President and ensure our student-athletes maintain the high level of personal ethics and integrity that Baylor Nation demands. I will work directly with the Board of Regents to formulate the specific responsibilities of this position (“Baylor University….” August 28, 2015).
By September 2nd, an announcement was made that the Board had hired Pepper Hamilton LLP, a Philadelphia-based law firm, to conduct a “thorough and independent external investigation into the university’s handling of cases of sexual assault” “Baylor University…”). The lead attorneys from Pepper Hamilton were identified as Gina Maisto Smith and Leslie Gomez.
The next day, September 3rd, President Baylor issued a letter to Baylor Nation just a day before their football season opener against Southern Methodist University. In it, he reported that new information presented in the trial made the university aware, apparently for the first time, “of painful details of a brave survivor — and Baylor student-athlete at the time — who deserves our compassion and understanding.”[3] Starr went on to write:
Our hearts break for any victim of such an unspeakable crime against human dignity. Her moving testimony at trial greatly disturbed all of us. What she said in court prompted us to take swift action…. (Starr, September 3, 2015, para. 2).
Baylor may have been moved by the bravery of the victim but it remains an open question as to how the victim will feel after the independent investigation comes to a close given the hiring of a firm like Pepper Hamilton that has gained a reputation for representing institutional interests above those of victims.[4] While that characterization may or may not be accurate, it is alive within the community of sexual assault victims who have had to seek outside counsel, much like Baylor’s Jane Doe, in order to protect their interests. As Buzzfeed.com reporter Katie Baker (2014) wrote:
But while college presidents love Smith and Gomez, many of the women who forced their universities to hire consultants in the first place loathe them. Complainants across the country told BuzzFeed that they believed their institutions were paying Smith and Gomez to clean up messes by paying lip service to federal compliance (Baker, 2014).[5]
As ESPN camera crews and broadcasters rolled into Dallas to cover the Baylor season opener against SMU on September 4th, the cycle of damage control was nearly brought to a close and that kind of question would wait for another day.[6] The field was cleared for Baylor Nation to cheer on their fourth ranked Bears, hoping for a run at the national championship.
Conclusion
The actions taken by Baylor in the aftermath of the alleged assault against the female soccer player, if viewed in the most favorable light, may be a reflection of a sincere institutional desire to do well by their students and to abide by a federal law that recognizes that sexual assault is a form of sex discrimination that powerfully affects victims and entire campus cultures. However, the escalation of Baylor’s efforts around Title IX and sexual assault prevention during the last 11 months, with those increasing daily in the aftermath of the Ukwuachu conviction, suggest the institution is going to great pains to control the damage.
The statistics tell a story. One internal Title IX investigation, one conviction, one comprehensive internal inquiry, one pending thorough and independent external investigation. One Title IX coordinator hired, two Title IX investigators hired, one “unique position” at an officer level housed in the athletic department to monitor athlete conduct going to be hired. One law firm retained with two lead Title IX investigators.[7] All executed within the span of 11 months, despite Mr. Starr’s comments from the Big 12 forum that “… we learned long before Senator McCaskill’s very important report[8] that there is a vital need for a system of checks and balances. So, that is a question that university governance has to ask itself… Do we have the kind of structure and system in place to make sure so that these kinds of profoundly serious charges are fully and fairly investigated in a professional way…?” If this was understood long before July of 2014, then why did it take a conviction to investigate these questions?
Will all of the activity that Baylor is engaged in overcome the reality that something went very wrong in the initial investigation? Baylor’s history on multiple fronts adds a backstory that may be difficult to overcome, specifically the record of wrongdoing in the athletic program and a resistive approach to Title IX for decades (see Part I. for details). Baylor’s current actions will be viewed and judged through those intersecting lenses.
References
Baker, K. (2014, April 24). Rape victims don’t trust the fixers colleges hire to help them. Buzzfeed.com. Retrieved from http://www.buzzfeed.com/katiejmbaker/rape-victims-dont-trust-the-fixers-colleges-hire-to-help-the#.pbE2nWA21
“Baylor President Ken Starr statement on internal inquiry, next steps.” (2015, August 28). Press release. Waco, TX: Baylor University. Retrieved from http://www.baylor.edu/mediacommunications/news.php?action=story&story=159497
“Board of Regents announces outside counsel.” (2015, September 2). Press release. Waco, TX: Baylor University. Retrieved from http://www.baylor.edu/mediacommunications/news.php?action=story&story=159611
Brashear, G. (2015, February 4). The business of rape: Who’s getting paid to fix UVA’s sexual assault problem? C-ville.com. Retrieved from http://www.c-ville.com/business-rape-whos-getting-paid-fix-uvas-sexual-assault-problem/#.VfQv7RFViko
Brusseler, M., & Marino, M. (2015, September 3). Penn State and Pepper Hamilton LLP unite in opposition to Paterno estate motion. The Collegian. Retrieved from http://www.collegian.psu.edu/news/crime_courts/article_4669354e-527f-11e5-b290-6b324b604290.html
Carlton, C. (2014, August 31). As Baylor opens ‘unbelievable’ stadium, can football team live up to it? The Dallas Morning News. Retrieved from http://www.dallasnews.com/sports/college-sports/headlines/20140830-as-baylor-opens-mclane-stadium-sunday-it-hopes-to-live-to-new-standard.ece
Griffin, T. (2015, September 3). Oakman, Stewart suspended for Baylor’s opener after violation of team rules. *Chron.com. Retrieved from http://blog.chron.com/sportsupdate/2015/09/oakman-stewart-suspended-for-baylors-opener-after-violation-of-team-rules/
Halliburton, S. (2015, August 31). All Baylor athletes completed violence prevention training. The Stateman. Retrieved from http://collegesports.blog.statesman.com/2015/08/31/all-baylor-athletes-participated-in-violence-prevention-training-after-sam-ukwuachu-rape-case/
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
McCaskill, C. (2014, July). Sexual violence on campus: How too many institutions of higher education are failing to protect students. Retrieved from http://www.mccaskill.senate.gov/SurveyReportwithAppendix.pdf
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/
Starr, K. (2015, September 3). Letter to Baylor Nation: Keeping Baylor Nation informed. Retrieved from http://www.baylor.edu/president/news.php?action=story&story=159644&_buref=1169-91771
“Statement from Baylor University.” (2015, August 21). Press release. Waco, TX: Baylor University. Retrieved from http://www.baylor.edu/mediacommunications/news.php?action=story&story=159264
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
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/
Wise, M. (2003, August 28). College basketball: Death and deception. The New York Times. Retrieved from http://www.nytimes.com/2003/08/28/sports/college-basketball-death-and-deception.html
Witherspoon, T. (2015.a). 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
Witherspoon, T. (2015b, September 11). Baylor mum about details of outside investigation. WacoTribune.com. Retrieved from http://www.wacotrib.com/news/higher_education/baylor-mum-about-details-of-outside-investigation/article_6b9204c0-de54-5cd2-8f12-a3c8c152ea3d.html
[1] In July of 2014, U.S. Senator Claire McCaskell published a report entitled Sexual Violence on Campus: How Too Many Institutions of Higher Education Are Failing to Protect Students documenting the levels of sexual violence that occur on college campuses and the ways in which institutions mishandle complaints.
[2] The timing of the hires of the Title IX investigators was determined by going to their LinkedIn pages. Each posts when they were hired at Baylor in those positions.
[3] The survivor transferred from Baylor and is now attending another institution. This is not noted in the letter to Baylor Nation.
[4] Pepper Hamilton’s former chair of its Executive Committee is partner, Louis Freeh. Pepper Hamilton had acquired Freeh’s firm in 2012 after they completed an independent investigation at Penn State following the indictment of child predator Jerry Sandusky, the former Penn State football coach who was eventually convicted on 45 of 47 counts. The report from that investigation, known as The Freeh Report, remains controversial not only for its substance but its use by NCAA officials in sanctioning Penn State in an unprecedented fashion (Brusseler & Marino, 2015).
[5] In an interview with Tommy Witherspoon (2015b), a reporter with The Waco Tribune, the attorney representing Jane Doe, John Clune, indicated the he had worked with Smith and Gomez on previous cases and had had a good experience and that he was not concerned about bias. He said, “All I can say is that, based on my experiences with these women, they are not going to sugarcoat things. They will give it to the university straight after they write their report” (para. 20).
[6] The night before the opening game, two Baylor football players – Big 12 preseason defensive player of the year Shawn Oakman and Orion Stewart, the starting safety — were suspended for one game. The suspensions were attributed to violations of team rules (Griffin, 2015).
[7] The cost of this kind of external review can be substantial. In the case of the University of Virginia, the University paid one firm (IO’Melveny & Myers) $500,000 in addition to fees and expenses. Smith and Gomez were also hired as part of that review team. Reports indicate an hour rate of $660 for Smith; $550 for Gomez, and $275 to $400 for other supporting attorneys (Brashear, 2015).
[8] In July of 2014, U.S. Senator Claire McCaskell published a report entitled Sexual Violence on Campus: How Too Many Institutions of Higher Education Are Failing to Protect Students documenting the levels of sexual violence that occur on college campuses and the ways in which institutions mishandle complaints.
