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.”

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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.