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May
29
2016

Unfathomable Lack of Institutional Control at #Baylor University

af27d60fa7e04b1397115606cfe6fd38Good evening, Atlantic Coast Conference (ACC) fans.  Hope you all have had a great Memorial Day Weekend.  Please remember all those men and women who have died in military service for our country.  We are thankful for their sacrifices – and we have our freedom today because of their service.

I’m going to write about a topic today that many of you – including me – are outraged and sad about at the same time.  And that is the unfathomable lack of institutional control that permitted a culture of sexual violence at Baylor University.

Now imagine if you knew this woman (here) from Baylor: Stefanie Mundhenk is someone’s daughter, maybe someone’s sister, she is someone’s cousin, she is someone’s niece, she is someone’s granddaughter, and she is definitely someone’s friend – what would you say to this woman?  She must live as a rape victim for the rest of her life.  My heart aches for her – her life – and the many women at Baylor who had no one – no one – protecting them.

And now, as I previously stated, comes the unfathomable lack of institutional control that permitted a culture of sexual violence at Baylor University.  Reading this timeline from the Waco Tribune-Herald on sexual violence crimes and actions taken by Baylor University will make you sick.  Why would it take Baylor University so long to realize that they had a problem on their hands?   You might not remember this, but Baylor is not far removed from a scandal that included the charge of murder against a former teammate.  That scandal also included the tape-recorded plot of Baylor’s former men’s basketball coach, Dave Bliss, trying to cover-up major NCAA infractions with a story that the murdered player had been a drug dealer.  So, Baylor already has had recent problems in its athletic department.

In August 2015, Baylor University hired Pepper Hamilton LLP (Pepper)  to conduct an independent and external review of Baylor University’s institutional response to Title IX and related compliance issues through the lens of specific cases (you can see their 3500 word statement of findings of fact here).  For those of you unfamiliar with Title IX and how it relates to sexual assault, here is a primer on that subject (U.S. Department of Education, Office for Civil Rights, Accessed on May 29, 2016 at https://www2.ed.gov/about/offices/list/ocr/docs/know-rights-201404-title-ix.pdf).  I could quote countless issues from the Pepper review, but then I would be quoting the entire report.  Here is a major section in the report’s executive summary:

Pepper found that Baylor’s efforts to implement Title IX were slow, ad hoc, and hindered by a lack of institutional support and engagement by senior leadership. Based on a high-level audit of all reports of sexual harassment or violence for three academic years from 2012-2013 through 2014-2015, Pepper found that the University’s student conduct processes were wholly inadequate to consistently provide a prompt and equitable response under Title IX, that Baylor failed to consistently support complainants through the provision of interim measures, and that in some cases, the University failed to take action to identify and eliminate a potential hostile environment, prevent its recurrence, or address its effects for individual complainants or the broader campus community. Pepper also found examples of actions by  University administrators that directly discouraged complainants from reporting or participating in student conduct processes, or that contributed to or accommodated a hostile environment. In one instance, those actions constituted retaliation against a complainant for reporting sexual assault. (emphasis mine) In addition to broader University failings, Pepper found specific failings within both the football program and Athletics Department leadership, including a failure to identify and respond to a pattern of sexual violence by a football player, to take action in response to reports of a sexual assault by multiple football players, and to take action in response to a report of dating violence. Pepper’s findings also reflect significant concerns about the tone and culture within Baylor’s football program as it relates to accountability for all forms of athlete misconduct.  (Baylor University Board of Regents, Findings of Fact, Pages 1-2, Accessed on May 29, 2016 at http://www.baylor.edu/rtsv/doc.php/266596.pdf)

You heard that right – Baylor retaliated against one of the complaintants.

And…

In some instances, administrative responses and campus processes caused significant harm to complainants. Actions by a University administrator within the [Baylor University Police Department] and an administrator within an academic program contributed to, and in some instances, accommodated or created a hostile environment, rather than taking action to eliminate a hostile environment. (Baylor University Board of Regents, Findings of Fact, Page 9, Accessed on May 29, 2016 at on May 29, 2016 at http://www.baylor.edu/rtsv/doc.php/266596.pdf)

Let us reiterate:  Baylor created a hostile environment for complaintants rather than taking action to eliminate a hostile environment.  This is awful.

Baylor failed to maintain effective oversight and supervision of the Athletics Department as it related to the effective implementation of Title IX – and created a cultural perception that football was above the rules.  (Baylor University Board of Regents, Findings of Fact, Page 10, Accessed on May 29, 2016 at on May 29, 2016 at http://www.baylor.edu/rtsv/doc.php/266596.pdf).  Specifically:

Baylor failed to take appropriate action to respond to reports of sexual assault and dating violence reportedly committed by football players. The choices made by football staff and athletics leadership, in some instances, posed a risk to campus safety and the integrity of the University. In certain instances, including reports of a sexual assault by multiple football players, athletics and football personnel affirmatively chose not to report sexual violence and dating violence to an appropriate administrator outside of athletics. In those instances, football coaches or staff met directly with a complainant and/or a parent of a complainant and did not report the misconduct. As a result, no action was taken to support complainants, fairly and impartially evaluate the conduct under Title IX, address identified cultural concerns within the football program, or protect campus safety once aware of a potential pattern of sexual violence by multiple football players.  (Page 11)

In addition to the failures related to sexual assault and dating violence, individuals within the football program actively sought to maintain internal control over discipline for other forms of misconduct. Athletics personnel failed to recognize the conflict of interest in roles and risk to campus safety by insulating athletes from student conduct processes. Football coaches and staff took affirmative steps to maintain internal control over discipline of players and to actively divert cases from the student conduct or criminal processes. In some cases, football coaches and staff had inappropriate involvement in disciplinary and criminal matters or engaged in improper conduct that reinforced an overall perception that football was above the rules, and that there was no culture of accountability for misconduct.  (Page 11)

So, in short, football coaches and staff basically killed sexual violence and dating complaints – they made sure these complaints were in the graveyard.  It is important to reiterate the plural aspect here – Pepper mentioned multiple coaches were involved in burying these complaints – that’s an important point as we move forward in this blog post.

The Pepper recommendations list is so deep, it boggles the mind.  Baylor has a lot of work to do to remediate it’s Title IX deficiencies – and that’s probably the understatement of the year.  Baylor has already announced some major personnel changes as a result of the Pepper Report:

  1. Ken Starr will no longer serve in the role as President of Baylor, effective May 31, 2016.  Starr will remain at Baylor as a constitutional law professor (dying to know what my sister thinks of this) and has agreed in principle to serve as Chancellor on terms that are still being discussed.

  2. Art Briles was terminated.

  3. Ian McCaw, Baylor’s Athletic Director, has been sanctioned and put on probation.

  4. Additionally members of the Administration and Athletics program have also been dismissed (Baylor mentioned that these individuals nor their disciplinary actions will be disclosed publicly – I’m sure that Baylor is worried about lawsuits.  Baylor is also a private institution and doesn’t have to disclose this information).

  5. The Board of Regents has created the full-time position of Title IX Chief Compliance Officer that will report directly to the Office of the President (this is one of the better developments).

A few issues here.  First, the big issue here is with Starr – I do not know how he is still at Baylor – he is a world class attorney (he was the Dean of Pepperdine University Law School prior to his arrival and we all know his legal background in the Federal Government), yet all this happened under his watch (he is saying he didn’t know about any of these complaints until Fall 2015).  Second, who are you going to hire as the interim football coach?  It can’t be anyone on the current staff.  As we said above, these football coaches made sure that any sexual violence or dating complaints went to the graveyard.  Third, how does Baylor’s Athletic Director still have a job?  Baylor still has to answer these questions.

The world is going to watching the NCAA when their review begins because Baylor Nation doesn’t need another Stefanie Mundhenk incident to happen on their campus.

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