Examining the U of H Lawsuit: Penalty Flag or Fair Play?

Sep 27, 2019

By: Dr. Anthony Rosselli, of Texas A&M University — Commerce, Anthony.Rosselli@tamuc.edu
It is no secret that DI college coaches are hired and fired on a continuously rotating carousel. As soon as rumors break of a notable program firing the beloved head football coach, rumors immediately break of the possible replacement for said coach. It leaves one to question the legitimacy and legality of the search process for these positions. Those who have participated in national searches for any job position know how long it takes to do a thorough job of hiring the best candidate. First, time needs to be allowed for a pool of qualified applicants to submit their applications. Then each applicant needs to be reviewed thoroughly. After identifying the top candidates, each is brought in and interviewed. Finally, all of the HR paperwork necessary to abide by the institution policies, system regulations, and state law has to be filed. This sounds like a lengthy and time-consuming process… until it isn’t.
This article will examine the complaint brought forth by Dr. Kevin Simms against the University of Houston (U of H). Simms claims that U of H failed to abide by state law, which did not allow time for African American candidates to apply for the head football-coaching job that came available.
On January 2nd, 2019, Dana Holgorsen was announced as the new head coach for the U of H football team (Duarte, 2019). This came just three days after the firing of former coach Major Applewhite on December 30th, 2018. Sports Illustrated covered the hiring and claims that the deal to hire Holgorsen was made “weeks before it was announced on Jan. 2,” (Dellenger, 2019, para. 10).
Dr. Kevin Simms has filed dual complaints with the EEOC and Texas Workforce Commission Civil Rights Division, and is now seeking a Notice of Right to File Civil Action from the Texas Workforce Commission directly (Simms v. University of Houston, 2019). Simms and his attorney claim that African American candidates were discriminated against because U of H did not properly post the job opening for two weeks (as required by the law). Texas Labor Code Chapter 21 is referred to as well as U of H’s official policies and procedures on job advertisement.
At the press conference for Holgorsen, U of H chairman Tilman Fertitta stated, “We’re not doing a search, we’re getting one of our own who’s is not looking for their next job” (Natoria, 2019, para. 6). This conflicted with a statement from the U of H Athletic Director who said, “We interviewed a spectrum of candidates of all diversities” (Natoria, para. 14). Simms challenged the search process, asking “How could you interview or talk to multiple candidates in three days” (Natorio, para. 10).
Texas Labor Code Chapter 21
Having searched and read Chapter 21 of the Texas Labor Code, I could find no evidence of a requirement to post a position for at least two weeks. Chapter 21 does provide guidance for discrimination in employment cases. Chapter 656.024 of the Texas Labor Code does state:
The commission shall publicly list, in accordance with the commission’s procedures, for at least 10 working days, each notice of a job vacancy delivered under Section 656.022 unless the commission is sooner notified by the state agency having the vacancy that the vacancy has been filled.
U of H: HR Recruitment, Job Posting and Selection of Staff Employees
“The University of Houston System is committed to equal opportunity and affirmative action in its recruiting practices… It applies to all exempt and non-exempt regular non-faculty employees” (University of Houston System: Administrative Memorandum, 2016, p. 1). Within the U of H HR policy on recruitment, job posting and selection of staff employees, Section 2:2.1 states that “All regular staff positions shall be posted for a minimum of ten working days prior to making a hiring decision, per Texas Government Code 656.024” (p. 1). Furthermore, Section 4:4.2 on recruitment states that all regular staff positions below the level of vice-president must be listed with the University’s HR. “This listing must take place prior to initiating any search activities” (University of Houston System: Administrative Memorandum, 2016, p. 2). Concerning selection of the candidate, Section 6:6.1 states that all applicants must complete an application for employment (University of Houston System: Administrative Memorandum, 2016, p. 3).
Qualifications of Holgorsen and Simms
As reported by several authors (and confirmed by my own attempt), an online search for Simms’s coaching resume does not yield a document or any records of coaching experience. The search does show Simms to be the director of the African American Coaches Association. Simms claims to have 30 years of coaching experience, and the complaint states that he is “clearly more qualified than Dana Holgersen” * (Simms v. University of Houston, 2019 p. 4). Holgorsen’s resume shows a history of DI coaching experience (including bowl games) and a former stint with the U of H team as the offensive coordinator. His earliest reported coaching experience is in 1993.
Historical Issue with Race in College Head Coaching Positions
Discussion of the lack of racial diversity in head college coaching positions is not new. Richard Lapchick has been documenting diversity statistics in all major league and college sports for some time. Authors of color and those who study the sociology of sport largely find the same thing; namely, the higher the rank, fewer people of color and women acquire those roles. Take for example the 2018 College Sport Racial and Gender Report Card’s findings. In 2018, for DI football teams, coaches of color actually occupied less of these roles than in 2017 (down from 12.1% to 10.4%). While the percentage of minority head male coaches (overall in all sports) at the DI level rose during this period (from 13.8% to 14.0%, of which 7.8% were African American), there is still a dearth of coaches of color at the head coach level. Considering that 50% of the DI football players are racial minorities (44% being African American), the 6.9% of African American head coaches in DI football raises cause for concern (The 2018 Racial and Gender Report Card: College Sport, 2019). Announcements of a firing followed three days by a hiring do not help to ease the criticisms of a lack of fairness in the process.
In conclusion, this complaint does appear to have merit, albeit perhaps not as strongly in the areas it is trying to state. Given the evidence, the claim of superior qualifications does not appear to be the best strategy for the plaintiff. This is not to say that other African American coaches do not have the required qualifications for the job (there likely are many), it is impossible for the public to know if Simms does (given an absence of online resume or record). It would appear that a stronger case could be made against the failure to properly post the job application as required by both Texas law and the U of H policies and procedures. In a roundabout way, that may be what the complaint is ultimately saying. While there is evidence that this type of hiring practice in big-time college athletics is both common and unethical, just because something is unethical does not make it illegal (and vice versa). College athletics is notorious for this type of hiring strategy, and such practices often exclude women as well as people of color (Buzuvis, 2017). Perhaps this complaint will continue to unravel and shed light upon the practices of big-time DI College coaching hiring. Ethically, there is cause to end these practices, and this case may be the tipping point. Examples like these do nothing to help end the “good-old-boy” accusations against DI athletics. However, as history has shown, only time will tell the full story.
*note misspelling of Holgorsen is in the complaint and quoted verbatim
Buzuvis, E. (2017). Coaches in court: Legal challenges to sex discrimination in college athletics. Tennessee Journal of Race, Gender, & Social Justice, 6.1, 41-66.
Dellenger, R. (2019, April). Dana Holgorsen came back to Houston to be himself on his turf. Sports Illustrated. Retrieved from https://amp.si.com/college-football/2019/04/30/dana-holgorsen-houston-west-virginia-recruiting
Duarte, J. (2019, May). Report: UH, Dana Holgorsen had deal in place weeks before it was announced. Houston Chronicle. Retrieved from https://www.chron.com/sports/cougars/article/ Report-UH-Dana-Holgorsen-had-deal-in-place-13811812.php
Natorio, N. (2019, January). Dana Holgorsen re-enters Cougars country as UH questioned over process. ABC Eyewitness News 13. Retrieved from https://abc13.com/sports/uh-welcomes-new-football-coach-despite-questions-over-hiring/5011329/
Simms v. University of Houston. (2019).
Texas Labor Code. Title 2: Protection of laborers. Subtitle A: Employment discrimination. Chapter 21: Employment discrimination. Subchapter A: General provisions. Retrieved from https://statutes.capitol.texas.gov/Docs/SDocs/LABORCODE.pdf
Texas Labor Code. Title 6: Public officers and employees. Subtitle B: State officers and employees. Chapter 656: Job notices and training. Subchapter A: Employment openings. Retrieved from https://statutes. capitol.texas.gov/Docs/GV/htm/GV.656.htm#656.024
TIDES. (2019). The 2018 racial and gender report card: College sport. Retrieved from https://docs.wixstatic.com/ugd/7d86e5_05a980a149c24e69baa5265abc63c3b2.pdf
University of Houston. (2016). Administrative memorandum: Recruitment, job posting and selection of staff employees. Number: 02.A.13. Retrieved from http://www.uhsystem.edu/ compliance-ethics/_docs/sam/02/2a13.pdf


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