By: Bujar Ahmeti, Esq., Athletics Compliance Officer at the University of Oklahoma
On June 12, 2017, the University of Colorado (“Colorado”) released its External Report re: University Response to Report of Dating/Domestic Violence (the “Report”) which investigated the steps taken by members of the University of Colorado’s leadership in response to dating/domestic violence allegations received from the partner of former Assistant Football Coach Joe Tumpkin.
After a thorough review of the events that preceded the Report, including a review of the applicable policies and procedures as well as numerous interviews with the involved parties, it was determined that Chancellor Phil DiStefano, Athletic Director Rick George, and Head Football Coach Mike MacIntyre each failed to report the incident of dating/domestic violence to the Office of Institutional Equity and Compliance (“OIEC”) in violation of Colorado’s applicable policies.
It is important to discuss the actions taken by Colorado to implement compliant Title IX policies prior to the events which led to the necessity of the Report. In 2013, Colorado engaged the attorneys who prepared the Report to conduct an external audit of CU’s policies, procedures, and practices under Title IX. This audit led to the creation of the OIEC and hiring of Valerie Simons as Title IX Coordinator.
The audit recommended broad and specialized training on, among other items, intimate partner violence as well as specialized training to all individuals who may be considered a “first responder” or “responsible employee” under Title IX. It was further recommended the training include information on how a reporter could reach the professionals within the Title IX office while encouraging all “responsible employees” share any report received with the Title IX office.
During the course of interviews, it was determined MacIntyre and Athletics Director Rick George had not received any specialized Title IX training beyond their initial online training on discrimination and harassment when hired. MacIntyre himself admitted he was not familiar with Colorado’s Title IX polices and had never received a detailed explanation of them except when interviewed for the Report.
George indicated he was familiar with Simons but was unclear what issues went to her office and which ones went to Colorado’s Office of Student Conduct.
As a result of the external audit, Colorado drafted and adopted Administrative Policy Statement 5014 (APS 5014). APS 5014 is clear in defining “sexual misconduct” to include partner abuse as well laying clear that APS 5014’s jurisdiction applies to off-campus conduct. More importantly, APS 5014 identified who is a responsible employee and states the reporting of incidents of sexual violence to the Title IX Coordinator.
MacIntyre and George both indicated they never received formal training on APS 5014 after its implementation. What is clear is it is not enough to only promulgate policies and procedures. Instead, universities must be cognizant of the fact that employees may not be aware of newly enacted policies and procedures. As a result, continued and direct education is needed to better define what conduct and response is required of employees who receive reports of alleged Title IX violations.
Shortly after being hired, Simons met with officials from the athletics department to discuss the reporting of alleged Title IX violations that occurred within athletics. Prior to the appointment of Simons, Colorado had a practice of a senior athletic department official serving as the liaison between the athletics department and the OIEC. Simons disagreed with this procedure and determined all “responsible employees” in athletics were required to report any alleged Title IX violations directly to OIEC similar to the other departments across campus. Later that year, Simons met with head coaches of all sports to relay this new procedure on reporting obligations.
Despite Simons insistence reports be made directly to her office and communicating this directly to athletics leadership, internal documents from coaches meetings obtained by the Report continued to emphasize that allegations of sexual misconduct and other Title IX violations should be reported internally within the athletics department prior to being reported to the OIEC.
The conflicting messages received by employees of the athletic department became problematic when MacIntyre first learned of the allegations against Tumpkin. Instead of following the instructions given to him by Simons and required by APS 5014, MacIntyre leaned on the common practice within athletics to report any allegations of Title IX violations to his superior.
What institutions can glean from this is that proper alignment between all department on an institution’s campus is necessary to ensure a proper response to an alleged Title IX violation. The actions of MacIntyre indicate he was aware of the severity of the report he received and the importance of informing the proper individuals. Unfortunately, due to the conflicting education he received on to whom he was required to report, Colorado was unable to properly respond.
When reviewing Title IX policies and procedures, it is imperative that not only are proper policies and procedures in place, but staff members are uniformly educated on what is expected of them when they receive an allegation of a Title IX violation.
The conclusions reached in the Report are useful teaching tools for a university looking to revisit its own Title IX policies and procedures. Given the increased spotlight on how a university responds to allegations, it is imperative that all staff members understand what conduct triggers a duty to report, whether they are required to report such an instance, and to whom should the report go. It is not enough that policies and procedures are promulgated and staff members know they “should tell someone.” A detailed and thorough education on an ongoing basis is needed that includes updates to any policies and procedures.