By Ellen Rugeley
The Department of Education is evaluating a complaint that alleges harassment by members of the University of Montana (UM) Grizzlies football team.
The complaint, which was filed with the Department’s Office of Civil Rights (OCR), names UM, school president Royce Engstrom, former president George Dennison and several athletic department officials (who were redacted from the complaint) as defendants.
If the OCR chooses to investigate a complaint, it sends letters of notification to those involved. However, the OCR has reportedly not sent a letter to UM and is still evaluating the complaint. It has not yet decided whether or not to conduct a formal investigation.
If the OCR decides the complaint merits investigation, and if that review shows UM violated federal civil rights laws, UM will have to come up with a remedial plan, the agency wrote. Otherwise, “OCR will be required to initiate enforcement action against this recipient.”
According to the OCR form, the initial complaint alleged “harassment/hostile workplace by football team.” The date of that complaint was redacted because “a law enforcement proceeding is pending or prospective and the disclosure of information about it could reasonably be expected to cause some articulable harm.”
The complaint said the last act of discrimination occurred on December 31, 2011. “Note also that two current members of the team were tasered and arrested at a party this season. Charges were bargained down to nothing, but the police department investigation did not find excessive force was used. This is also the same team that had accused-of-murder-but-intimidated witnesses (name redacted) on it,” it said.
The first reference is to cornerback Trumaine Johnson and quarterback Gerald Kemp, who were tased in October as police tried to break up a rowdy post-game party at Johnson’s off-campus apartment. Both originally were charged with misdemeanor assault, resisting arrest and obstructing a peace officer, but pleaded no contest to disorderly conduct.
Jimmy Wilson was the only Grizzlies football player accused of murder. Wilson was acquitted in 2009 in a fatal shooting two years earlier in California. In 2010, Wilson pled guilty to misdemeanor disorderly conduct after biting a woman shortly after returning to the football team.
The OCR form asked the complainant to detail why the alleged discrimination is believed to be based on sex, or why the action is believed to have been retaliatory.
“There are additional issues now,” the complainant wrote. The OCR redacted what followed.
The complainant also cited a January newspaper story about the challenges that law enforcement and prosecutors face in investigation and filing charges in rape cases. “This is a serious issue,” the complainant wrote- more information was redacted because of law enforcement and privacy issues.
In response to the form’s final question, the complainant said there is written information to help the OCR understand the complaint.
The complainant also filled out the answer to the penultimate question: “What would you like the institution to do as a result of your complaint- what remedy are you seeking?” However, the response was redacted.
Athletic Director and Football Coach Were Fired
The aforementioned complaint is not the only action taking place at UM. Engstrom abruptly fired athletic director Jim O’Day and football coach Robin Pflugrad last month without specifying reasons. Engstrom’s actions followed weeks of investigation by the university into allegations of sexual assault, including gang rapes, involving UM students.
“I think we were both stunned and shocked. We both know that’s part of the business we’re in. This sort of thing happens from time to time to good people,” said O’Day.
There have been nine sexual assault reports over the past year and a half involving UM athletes and non-athletes. Former Montana Supreme Court Justice Diane Barz led an independent investigation of the nine sexual assaults involving UM students, including a December 2010 incident in which two women alleged they were drugged and gang-raped by members of the football team.
According to Barz, Pflugrad did not properly report the incident to university officials. However, Pflugrad defended his actions in December 2010. “With the information I had at that particular moment in time- I did the right thing with the information I had,” he said. “And that was told to me by the Missoula Police Department. I was told I did an admirable job not only with my discussion of those players, but my disciplinary process.”
No players were charged with a crime in that incident, or for an alleged gang rape that hit the news during the past season before the Football Championship Subdivision semifinals.
Grizzlies running back Beau Donaldson has since been charged with sexual intercourse without consent for an incident dating back to September 2010. In addition, a UM student took out a restraining order on March 9 against UM quarterback Jordan Johnson, alleging he’d sexually assaulted her. However, Johnson has since returned to the practice field, following a civil no-contact agreement between his lawyer and that of his alleged victim; the restraining order was dismissed, though Johnson was to avoid all contact with the student.
Pflugrad spoke highly about Johnson’s return. “I think any time you have a person of Jordy’s character and tremendous moral fiber, and he’s your team captain and part of the leadership council, your players are going to be fired up,” Pflugrad said at the time.
This led to a rebuttal letter from the alleged victim’s lawyer the day before Pflugrad and O’Day were dismissed.
Pflugrad did not regret his comments in support of Johnson.
Clay Christian, Montana’s commissioner of higher education, said the dismissals are “the type of decisions that presidents are required to make, and I’m confident in President Engstrom’s decisions and his ability to make them. I’ve been in contact with him and I’m confident in the decision that he had to make.”
UM Changes Student-Athlete Code of Conduct
As a result of the reports, UM changed its rules for how student-athletes are punished when they break the Student-Athlete Code of Conduct.
Engstrom recently released a four-page report outlining these changes. The report also stated that five students are no longer enrolled at UM, three students are appealing the accusations, and two cases were suspended as victims didn’t want to pursue legal action.
However, two additional assaults were reported recently, including a police report filed on March 16, alleging a February 4th rape, making the case that UM’s battle against sexual assault is far from over.
“I don’t want to give the impression that we have eliminated sexual assault,” Engstrom said. “It will be an ongoing issue for us as it will be on any college campus and so we need to just move as aggressively as we can toward the goal of eliminating sexual assault.”
As part of the changes, UM will put more finances toward campus education. It will also add one more public safety officer and put an emphasis on residence hall patrol at night.
In addition, the coaches are no longer to decide how to discipline athletes who break the code. Instead, a newly formed Athletic Conduct Team comprised of the athletic director, senior associate athletic director and a faculty athletic representative will make those decisions.
Under the new Student-Athlete Conduct Code, infractions are ranked as Category I, II, or III. Sexual assault and other felonies are the most serious in Category I. According to the Code, a “Category I” penalty results in dismissal from the team upon the first offense.
UM also vowed to improve its communication with all parties when a student reports rape, but Engstrom said the school is still obligated to protect student confidentiality, and can only share names with police if the alleged victim wants to pursue criminal action.
O’day has hired the Billings law firm of Edwards, Frickle and Culver to advise him and his family on their legal rights and assist with the process associated with his unexpected dismissal from UM. Pflugrad has also hired an attorney.
Since the OCR has interpreted Title IX to include sexual violence, mandating that universities take the lead in providing a resolution if an incident occurs, adding that they cannot wait for police to complete their investigation before they decide to act, and that they take steps to prevent a recurrence, many feel that there is a strong possibility of a lawsuit, unless the complaint is resolved.
