Month: April 2020

Damning conclusions in spite of many caveats

A week after USA Today published a four-part series on student athletes who transfer freely between NCAA schools despite sexual misconduct claims, a university president-turned-lawmaker threatened to cut off the federal spigot to schools that don’t properly address violence.

The scrutiny from the media and Capitol Hill got the attention of the NCAA, which had formerly resisted government pressure. Now it claims to be “actively working” with Congress “to modernize our rules.”

Before we applaud this rush toward supposed accountability for the NCAA and its members, however, we must carefully vet the assertions in the “Predator Pipeline” series by USA Today’s investigative team. Has it actually documented a predator pipeline with NCAA involvement that requires congressional intervention?

The NCAA regulates more than 480,000 student athletes from 1,268 North American institutions. It is being accused of complicity in the pipeline, at the very least.

Freshman Democratic Rep. Donna Shalala, a former Clinton administration official and University of Miami president, introduced the Congressional Advisory Commission on Intercollegiate Athletics Act in December.

The bill creates a congressional commission to oversee college sports, and review how federal funding is spent on related programs. While HR-5528 is silent on the commission’s authority, Shalala herself implied that federal funding may be at stake.

“Our higher education institutions receive a substantial amount of federal student support funding,” Shalala told Florida Daily when she introduced the bill. “There is little oversight, and as a result, we have little insight into how the funding is being spent and if the students’ best interests are being prioritized. This commission would fill that gap.”

The USA Today investigation found that since 2014, at least 28 current and former athletes had transferred and continued to play sports despite being administratively disciplined for a sexual offense. One article’s subtitle says the NCAA “looks other way as athletes punished for sex offenses play on.”

MORE: Michigan State settles with Keith Mumphery after ruining his NFL career

Of more than 1,100 American colleges with NCAA programs, the 226 with teams competing at a  Division I level were surveyed. Just 35 provided data on sexual violence, of which one was excluded, representing about 15 percent of surveyed colleges and about 3 percent of the total.

The small size of the sampling is a problem. For one thing, conclusions based on a small sampling of a large population must be random to be credible. Otherwise, the data could reflect selection bias on the part of USA Today or the colleges themselves.

The responding colleges reported 531 cases of student sexual misconduct, 47 of which were NCAA athletes—all male. Questions arise again. Does this rate reflect the increased scrutiny athletes may receive? If a student is part of a another group that overlaps with athletes, which group is used?

In fairness, USA Today admits its data are “not necessarily representative.” It also acknowledges that some surveys appeared to report the same offender multiple times, and it is impossible for a reader to assess how effectively the duplicates were filtered out.

Despite advancing many caveats, however, USA Today goes on to draw damning conclusions. One concerns the non-responding colleges. “That’s 191 schools,” an article in the series states, “that shielded the identities of alleged abusers at the expense of women’s safety and the public’s right to know.”

There could be many reasons for a non-response, however. The college might resent the deadline imposed or the cost of assembling extensive data; USA Today admits a reluctance to pay some requested fees. The college could doubt the motives of the news organization. Or, perhaps, it felt constrained by state privacy laws or the federal Family Educational Rights and Privacy Act.

Definitional problems also exist. Universities use terms both vaguely and differently. Terms like “sexual misconduct” are elastic and stretch to cover everything from rape to a lover’s quarrel. One defense attorney told me that in half of her cases, there wasn’t any actual sex but allegations such as “he kissed me without permission.”

MORE: Liberty U expelled football player for rape hours before he was cleared

A congressional review of offenses is problematic as well, because it is not likely to include a review of the procedures used to adjudicate a case.

For years, sexual misconduct hearings have been defined by the so-called Dear Colleague letter to colleges from the Obama administration in April 2011. It admonished colleges flatly to believe an accuser and to refuse due process rights, such as cross-examination or the presence of a lawyer, to an accused student.

The neglect of due process continues to this day, and the problem of wrongful convictions that result is well documented. Some “convictions” have been overturned in the court system. Jack Montague (below), former captain of the Yale University basketball team, is an example.

A great tension also exists between USA Today’s statement of methodology and the four articles. The statement concludes with a call for “further investigation and analysis,” which is reasonable.

But the articles present lurid details of rape and express rage at specific athletes, and one of those articles may have put pressure on Rep. Shalala to file her bill.

“NCAA Board of Governors to review policies regarding sexual assault amid congressional pressure on ‘predator pipeline’,” for example, features a University of Miami football player “accused of gang rape” in 2014, when Shalala was president.

Alex Figueroa was expelled, and he later “accepted a deferred prosecution agreement for felony sexual battery with multiple perpetrators.” By failing to explain “deferred prosecution,” which means the system determined not to prosecute, USA Today implies that Figueroa was criminally disciplined.

Even though deferred prosecution cannot be conflated with guilt, the article uses Figueroa to illustrate the predator pipeline: He transferred to another NCAA college that independently assessed him as “an exemplary student-athlete.”

The need to address sexual violence will not go away, nor should it. But it must be approached with facts, not sensationalism, and with fairness to both the accuser and the accused. USA Today has not successfully documented a predator pipeline, and its articles should not be the basis of law.

Wendy McElroy is the author/editor of five books on individualist feminism, and several others on political topics. Her most recent book is “The Satoshi Revolution: A Revolution of Rising Expectations.” McElroy has written hundreds of articles that have appeared in such wide-raging publications as Penthouse, The Hill, and bitcoin.com.

In the Sciences case, two students—sorority sisters—filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.

There are many variations on the use of the single investigator, where the investigator chosen by the college will reach her conclusion of guilt on her own or where the investigator will present her conclusion to a panel, which will then reach its decision as to guilt. As Doe’s lawyer, Josh Engel, wrote in his brief, these amount to distinctions without any real difference.

In this model, an institution’s designated Title IX investigator interviews witnesses identified by the parties and reviews evidence provided by the parties. There is no independent effort to obtain information from third parties or other sources. The investigator then draws a conclusion about whether the accused student has violated school policies. There is no hearing where a party can present evidence and cross-examine adverse witnesses in front of a neutral fact-finder. The investigator literally serves as the police, judge and jury.11

11 Except, of course, that the police usually conduct more thorough investigations.
Here, an attorney merely recorded statements and gathered limited evidence voluntarily
provided by interested parties. This is not an “investigation” of a serious allegation as
the term would be understood by most law enforcement officers.

From the outset, the deck is stacked. It doesn’t have to be, but consider the qualifications of people who seek the job of Title IX investigator, and the people whom institutions select to fill that function. They tend to be people deeply involved with and sensitive to sexual misconduct against women on campus, usually with long histories of activism and proven dedication to the elimination of sexual misconduct against women.

This isn’t to say they lack the qualifications on paper, or lack the ability to present their findings in a gender-neutral fashion, but that their perception of the problem that guides their investigation is grounded in an ideological belief that precludes any fair assessment of the facts. They are dedicated to finding the facts, aggregating and presenting them in such a way as to assure the only “correct” outcome: guilt.

These Title IX investigators interview the accuser and accused, together with those witnesses they deem relevant. They gather evidence they deem relevant. They pursue avenues they deem relevant. If they deem only that which proves guilt to be relevant, then they ignore witnesses and evidence that don’t. It’s left entirely in their hands. When the only evidence presented is evidence of guilt, the outcome isn’t a mystery.

The rhetorical argument, that if Title IX investigators are fair and neutral, it will all turn out swell, is no more logically sound than the old proverb, “If wishes were horses, beggars would ride.” When the entirety of a process is placed in the hands of one person, who then presents conclusions based only on the evidence that supports the conclusion and omits all the evidence that shows it to be baseless or biased, it easily creates the appearance of fairness without any of the substance. Add to this the sort of person hired to play the role of Title IX investigator and the problem is abundantly clear.

So why, then, did 17 law professors file an amicus brief in support of the University?

Civil rights investigations rely primarily or exclusively on professional investigators to conduct a fact-finding process to determine whether and to what extent an accusation of sexual harassment or gender-based violence is accurate. Investigators gather documentary and physical evidence, as well as conduct separate interviews with and make credibility determination about the parties (i.e. the complainant and respondent) and any witnesses. They then synthesize the evidence gathered and write an investigative report where they make factual findings based on the evidence gathered.

Sounds rather warm, fuzzy and official, but the essence of their argument was better captured in their summary:

Non-adversarial, civil rights investigation methods advance comprehensive prevention of this harassment and violence more effectively than do the live, adversarial hearing-based methods that John Doe is demanding that Appellee use. Comprehensive prevention of sexual harassment and gender-based violence is a public health-based approach that incorporates primary, secondary, and tertiary forms of prevention. Civil rights investigation methods function as much more effective secondary and tertiary prevention than adversarial, live hearings do.

The first give-away is the use of the word “non-adversarial,” which replaces what the model should be called in the affirmative: Inquisitorial. If the inquisitor deems the accused guilty, then he is, and the accused is denied the ability to challenge the inquisitor’s conclusions because the conclusion has already been decided.

But the second idea, buried in this summary, is that neither the finding nor the sanction is about the accused, but about “public health” and “prevention.” In other words, the guilt of the accused isn’t particularly important to the cause, as promoting the notions that accusations will be inherently believed and accusers will be severely sanctioned serves the greater good of eradicating sexual misconduct. As for the accused, he’s just collateral damage in furthering the civil rights outcome.

While most arguments about the single investigator model tend to revolve around the mandates of due process and fundamental fairness, whether under the Constitution, or express or implied contractual terms, few cases directly confront the inherent impropriety of making one individual “judge, jury and executioner.” How much procedural due process is required, and how that can be achieved in a grossly sub-optimal setting such as a campus sex tribunal, raises one question. But there should be no question that the inquisitorial model, no matter how one characterizes the virtues of the inquisitor, invariably fails to provide the accused with a fair process. But as the 17 law profs argue, that was never the purpose.

On March 27, the Office for Management and Budget completed its roughly five-month review of the Department of Education’s proposed regulations on Title IX, paving the way for the regulations to be finalized. Unsurprisingly, prominent opponents of the regulations, who have opposed the proposal at each and every step, have seized on the coronavirus crisis to argue that the pending regulations should be delayed. The Department of Education should ignore these misplaced calls and finalize the regulations as soon as is practicable.

The classic legal maxim that “justice delayed is justice denied” is applicable here. The status quo with respect to campus Title IX proceedings is unacceptable. Institutions too often harm complainants by sweeping allegations under the rug or by handling their complaints with insufficient care, while the railroading of accused students is also well documented. (The recent OCR findings concluding its Title IX investigation at Pennsylvania State University demonstrate that sometimes a school violates the rights of both parties simultaneously!) Neither of these injustices should be allowed to persist.

Indeed, some of the same victims’ rights advocates that are calling for the proposed regulations to be delayed are simultaneously arguing that institutions that pause Title IX proceedings during the coronavirus pandemic are “prolonging the trauma” experienced by complainants. Last week, for example, one set of those advocacy groups, including prominent organizations like Know Your IX, Equal Rights Advocates, and the National Women’s Law Center  wrote the following in an open letter to institutions:

[S]chools’ logistical obstacles are not a sufficient justification for forcing students to forgo their right to a prompt and equitable process to address and redress sexual violence and other forms of sexual harassment. Meaningfully enforcing civil rights is not an obligation that dissipates in the face of institutional hardships–even during these unprecedented times.

It’s clear that these advocates think that institutions are capable of dedicating resources toward enforcing Title IX, even in this challenging environment. Title IX coordinators seem to agree. One Title IX coordinator told The Chronicle of Higher Education that his university’s “Title IX office remains fully operational.” Another pointed out that her Title IX office was able to use technology like videoconferencing to proceed.

If these professionals can figure out how to proceed with the pending cases, surely they can also review their policies for compliance with new regulations and make adjustments accordingly. Moreover, if institutions are going to continue to adjudicate these cases, they cannot cite the pandemic as a justification for continuing ongoing practices that may be violating students’ rights.

Critics who argue that now is not the time to reform Title IX practices are inherently arguing that even if what institutions are doing is unjust, now is not the time to address these problems. But the proposed Title IX regulations are not the only potential legal authority mandating changes. A growing list of schools are on the losing end of judicial opinions blasting the institutions’ procedures. Does anyone think the pandemic should result in stays in all of those cases? Should we presume that the current world situation should be grounds to stay all judicial orders — even those in other contexts — requiring the government to halt the revision of policies that violate constitutional rights? If not, then why only in this context must this type of institutional actor be allowed to continue unjust practices?

The latest calls to pause the regulations are nothing more than thinly veiled attempts to delay any changes in hopes that the proposal may yet be derailed by changes in political circumstances. But the moral requirements of justice do not change with the political winds. Indeed, this is most important to remember in times of crisis, when excuses for turning a blind eye to violations of rights are so tempting. Courts and other government actors cannot hide behind the pandemic to justify continuation of abuses.

The argument for delaying the finalization of the regulations also implies that institutions will have to scramble to revise their policies overnight. This is not true. The proposed Title IX regulations were first published on Nov. 29, 2018, which means that schools have already had nearly 500 days of advance notice of these proposed changes to consider potentially necessary policy revisions.

Further delay wouldn’t help institutions anyway. The sooner the proposed regulations are finalized, the sooner institutions and their communities will have certainty with respect to what will be expected of them. This clarity will be to everyone’s benefit.