When "Not Guilty" Shows the Defendant is REALLY Guilty

Curmie is way behind on writing. Let’s start his return with a story that received far too little attention when it broke a couple of weeks ago. The NCAA announced a slap on the wrist penalty for Baylor University’s athletics programs after a years-long investigation into allegations that “Baylor shielded football student-athletes from the school’s disciplinary processes and did not report allegations of misconduct by football student-athletes” over a period of several years in the early 2010s. 

Despite finding the university’s “failings” to be “egregious,” the NCAA handed down a series of rather mild sanctions, the most serious of which is four years of probation.  (Let’s face it: a $5000 fine isn’t going to make a very big dent in Baylor's annual budget of about $800 million.)

How we ought to react to this announcement depends very much on where we focus our attention. The NCAA has long been a contender for the world’s most corrupt and incompetent sports organization, vying with the IOC and FIFA for that dubious distinction. (The International Handball Federation may have achieved a fair amount of well-deserved derision for their monumentally sexist insistence that female competitors wear bikini bottoms instead of shorts, but really, who cares about beach handball, which is virtually unknown in the US and isn’t even an Olympic sport?) 

So for the NCAA, with a reputation for over-reaching to dizzying degrees, to admit that they can’t punish Baylor without being able to point to a specific NCAA rule the university broke is something of a breakthrough. True, it took them years to come to this decision, but… baby steps… baby steps. Still, the rationale behind the decision is more than a little chilling. Here’s the key section of the report:

The panel found that those instances of non-reporting did not constitute impermissible benefits to football student-athletes because of a campus-wide culture of nonreporting. That culture was driven by the school’s broader failure to prioritize Title IX implementation, creating an environment in which faculty and staff did not know and/or understand their obligations to report allegations of sexual or interpersonal violence. Because the culture of non-reporting was not limited to cases involving student-athletes, the panel could not find that these instances resulted in impermissible benefits. (emphasis added)

In other words, the university escapes significant penalties for failing to report incidents of sexual violence by football players because they also couldn’t be bothered to report similar cases in which the perpetrators were non-athletes. 

To be sure, there are those who would disagree with the assessment that football players weren’t treated differently than other students would have been. A lawsuit alleged that no fewer than 52 rapes were committed over a six-year period by Baylor football players. That’s a lot. It doesn’t mean they all happened, of course, but it's a pretty damning statistic.  Another suit filed by a former volleyball player who claims to have been drugged and gang-raped by football players alleges that the Baylor program was such that “football players became increasingly emboldened, knowing that they could break the law, code of conduct, and general standards of human decency with no repercussions.” That comment, too, seems to me to be pretty specifically about football players.  (That suit, in case you were wondering, Gentle Reader, was settled out of court with no details released; the unidentified young woman transferred to another school.)  

In this case, by the way, the police, who ought to be the ones investigating the allegations, weren’t even notified. It is reasonable to argue universities ought not to be involved in investigating and reporting serious crimes at all, but Title IX demands that they do so, and the law is the law. But because the university argues it violated federal law on a consistent, across-the-board basis, they cannot be punished by the NCAA for violating the statute as respects felonious jocks, who according to this logic received no special treatment. 

This means, of course, that Baylor will be able to receive millions of dollars in television rights, post-season payouts for bowl games, etc., because they were even worse than previously imagined, creating a truly horrific culture in which not just pampered athletes but the entire student population is insulated against the repercussions of their actions. 

Art Briles: $15 million buyout 
for being an unethical ass

Curmie sees little evidence of contrition on the part of the university. True, they got rid of football coach Art Briles (they also paid him over $15 million as severance, hardly an agreement designed to teach him lesson in ethics!), athletic director Ian McCaw, and university president Ken Starr (yes, that Ken Starr). There were many pious proclamations, stopping just short of clichés about a new sheriff in town. And a couple (but far from even most) of the culprits were indeed brought to trial and convicted. But it’s difficult to believe that more than the names have changed; the culture simply ran (and runs) too deep. 

Baylor was found not guilty of the most serious offenses. They should be far more ashamed of the strategy employed to get that result than of any guilty verdict.  Should be...

The Courts Have Been Busy: Education Edition

Three court cases, all tied to education in some way, all of them (go figure!) showing the school to be at fault in ethical but not necessarily legal terms.  Let’s take them in chronological order by decision date.

First up: Sexual assault on the band bus.

In March of 2017, “Jane Doe,” then a junior at Oakton High School in Vienna, Virginia, traveled as a member of the school’s symphonic band to a music festival in Indianapolis.  As it happens, “Jack Smith,” a senior, sat next to her, said he was cold, and asked to share her blanket.  The blanket then covered them both.

As to what exactly happened next, there is some dispute, but Smith ultimately admitted to sticking his hand up Doe’s shirt and touching her breasts; he denies Doe’s allegations that he also put his hand down her pants and penetrated her vagina with his fingers or that he forced her hand onto his penis.  Doe claims that all of this was non-consensual, and told friends about the incident upon arrival in Indianapolis.

These friends then told school administrators.  What happens thereafter is a little confusing to sort out, but it is certainly noteworthy that, in the words of the decision of the 4th Circuit Court of Appeals, “school  officials—including  Assistant  Principal  Michelle  Taylor, who accompanied the band to Indianapolis—took no action regarding these reports during the trip, and they did not speak to either Doe or her parents about what had happened on the bus ride.”

Doe subsequently was called into the principal’s office, where she described her experience.  After what appears to have been a rather cursory investigation, Principal John Banbury and Assistant Principal Jennifer Hogan decided that “the evidence that [they] had didn’t show that [they] could call it a sexual assault.”

OK, stop right there.  WHAT???  The boy admits he put his hand up the girl’s shirt.  Even if the rest of the allegation is fabricated, that’s enough, isn’t it?  So, the only question is consent.  This is an important point, of course.  It isn’t assault if Doe complied willingly.  She says, admittedly rather obliquely, that she didn’t “think it was consensual,” and school officials grant that such a statement suggests that consent was absent.  There’s nothing in the court decision to suggest that Smith argued that point.  Surely there’s enough there to suggest that it could (!) be called a sexual assault.

Moreover, Doe suffered some pretty significant after-effects of the incident, sought and received professional help, and was diagnosed with adjustment disorder with anxiety.  Her symptoms, which would be pretty damned hard to fake for a long period of time, lasted even after Smith graduated.  Her attendance record and grades both plummeted.  Curmie is neither a cop nor a psychologist, but this evidence seems rather compelling, does it not?

Things get a little more complicated here.  Doe clearly received accommodations from the school, or at least from individual teachers: she continued in band class by “sitting in a small private room by herself,” for example.  On the flip side, Principal Banbury admits to making a crude joke about the incident.

Anyway, Doe and her parents sued the school for “deliberate indifference” leading to a “deprivation of access to educational opportunities or benefits.” If Curmie understands correctly, this takes several forms: not offering assistance to Doe when the incident was first reported on the trip per se, not punishing Smith in any way (meaning, in effect, that he was allowed to continue in band but she, because of Smith’s presence, could not), the principal’s lewd joke, etc.

From the court decision again:

The jury found that Smith had sexually harassed Doe and that the harassment had been severe, pervasive, and offensive enough to deprive Doe of equal access to the educational opportunities or benefits provided by her school.  However, the jury also found that the School Board did not have actual knowledge of the alleged sexual harassment.

Again… what?

The fact that the school didn’t take the allegation seriously is evidence that they didn’t hear about a claim that any reasonable person would regard as a claim of sexual harassment as defined by Title IX?  Well, sort of.  The dissenting judge in this case argues that the school was not responsible for a single incident (as they would have been had a pattern developed), and that they did what they could to prevent further incidents, which is all that is required.

This may be true under the law (insert obligatory “Curmie isn’t a lawyer” statement here), but it sure seems that the school’s response was late, superficial, and half-hearted.  And the lack of any punishment for Smith suggests, well, indifference on the part of the school.  Count Curmie with the majority on this one.

Next: Extended choke holds are OK if they’re disciplinary (!?!)

The idea of legal precedent is, to use the grad school word, vexed.  It’s certainly a good idea to make the law consistent, so that similar events are treated the same way.  But when the precedent itself is faulty, all that happens is that injustice multiplies.  Yes, there are occasions in which the Supreme Court will overturn a previous ruling (Brown v. Topeka comes to mind), but such instances are rare, and can occur only at the SCOTUS level.

But really the reliance on precedent is little (if indeed anything) more than a “we’ve always done it this way” argument.  Regardless of the specific circumstances, such a position is sufficient to maintain the status quo in the absence of a demonstrably better alternative, but not to continue down the same path out of habit when there are such superior options.

All of which brings us to the case of T.O. v. Fort Bend, recently decided by the 5th Circuit Court of Appeals.

Here are the basics: T.O. is a child with ADHD and ODD; he was therefore provided a behavioral aide and a Behavioral Intervention Plan.  One day in 2017, T.O. was acting up in class, and his aide removed him from the room and told him to stay in the hall until he had calmed down.  So far, so good, right? 

Enter Angela Abbott, a teacher who came upon the scene by chance.  Here’s the description from the court’s decision:

Although T.O.’s aide explained that the situation was under control, Abbott positioned  herself between T.O. and the classroom door while he yelled that he wanted to return to class. In an attempt to re-enter the classroom, T.O. tried to push Abbott away from the classroom door and hit her right leg.  Abbott responded by seizing T.O.’s neck, throwing him to the floor, and holding him in a choke hold for several minutes [emphasis added].  During that incident, Abbott yelled that T.O. “had hit the wrong one” and needed “to keep his hands to himself.”  She released T.O. after his aide asked Abbott “to release him...  because he needed air and she was holding him the wrong way.”

Ms. Abbott was, according to the court document, “never fired or disciplined in any way.”  Not surprisingly, T.O.’s parents were less than pleased at Abbott’s actions, and they sued her and the school.  But the court threw out the complaint because teachers have qualified immunity (the same concept that protects a handful of good cops and a plethora of bad ones), and the action occurred “in a disciplinary context.”

More specifically, there’s all this precedent [footnotes omitted]:

…we have consistently dismissed substantive due process claims when the offending conduct occurred in a disciplinary, pedagogical setting. For example, we dismissed substantive due process claims when a student was instructed to perform excessive physical exercise as a punishment for talking to a friend; when a police officer slammed a student to the ground and dragged him along the floor after the student disrupted class; when a teacher threatened a student, threw him against a wall, and choked him after the student questioned the teacher’s directive; when an aide grabbed, shoved, and kicked a disabled student for sliding a compact disc across a table and when a principal hit a student with a wooden paddle for skipping class.

Wait.  What???  Putting a kid in a chokehold for “several minutes” is permissible because all these other things were?  What if—stay with me here, Gentle Reader—those other things weren’t acceptable.  What if grabbing, shoving, and kicking a disabled student for sliding a CD across a table isn’t a good idea?  What then?

Surely it’s important for government employees—police, teachers, whatever—to have some limited authority to protect themselves, and to use some amount of physical force pre-emptively under certain circumstances.  But all of these examples suggest an egregious over-reaction that cannot be supported as ethical… of course, the court may be absolutely correct in legal terms (insert obligatory “Curmie isn’t a lawyer” disclaimer again), but the extent of qualified immunity protections must be limited somehow, if not by the courts, then by the legislature.  

Of course, this is Texas we’re talking about, and expecting the politicians to clean up the mess they’ve helped to create is rather like expecting a toddler to scrub the floor after dumping his chocolate pudding (or something else of that color and general consistency) all over it.

Finally: Schools can’t control students’ entire lives.

This one went all the way to SCOTUS, who rendered a pretty convincing 8-1 decision in the case of Mahanoy v. B.L., providing a clear indication that schools’ ability to control the off-campus activities of students is limited, and that off-campus speech (short of incitement, slander, or conspiracy) is protected.

B.L. was a freshman at Mahanoy Area High School in Pennsylvania in 2017.  She tried out for both the cheerleading squad and the softball team that spring; she was offered a spot on the J.V. cheerleading squad, but not the varsity.  It’s unclear what happened with softball, but she didn’t get what she wanted.

The following weekend, she posted on Snapchat a photo of herself engaging in the monodigital salute, with the caption “Fuck school fuck softball fuck cheer fuck everything.”  Not the most linguistically elegant of phrasings, to be sure. 

Be it noted: 1). the post was made from a convenience store, not school property, 2). B.L. used her own phone, not a school-owned device of any kind, 3). she was not in a cheerleading uniform, nor did she mention the school or any individual by name, 4). the post was made on the weekend on a platform on which posts are “live” for only 24 hours, so it’s unlikely school would have even been in session when the message was still available, 5). access to the post was limited to her Snapchat friends, not to the general public.

But, alas, one of those alleged friends narked on her, and because she had used profanity, she was barred from participation on the cheerleading squad altogether for a year.

Any rational being would follow something like the following thought process: she’s 14 or 15 years old; she’s upset; she’s venting to her friends; she’s not doing anything disruptive or illegal; she is not the first teenager to use phrasing derived from the Anglo-Saxon, nor will she be the last; she has 1st amendment rights and doesn’t surrender them unless there’s a specific and significant reason why she should.

All this, of course, would be contingent on the cheerleading coach, the principal, and various other powers-that-be having a little maturity, a little discretion, and a little respect for both a student and that short document known as the Bill of Rights.  But, as you know, Gentle Reader, these are school administrators, and there’s a teenaged girl to push around… the temptation is irresistible.

B.L. and her family sued, and won at the Appeals Court level.

The right of students to say and do what they please when not on campus, representing the school in some formal capacity, or overtly attempting to interfere with the operation of the school is, or at least ought to be, inviolate as far as the school is concerned.  Obviously, this right does not apply to illegal activities, but it’s not the school’s business to enforce the law: that’s why we have police forces.

Curmie has been saying this for years, just in this iteration of blogging: we can start chronologically with Emma Sullivan, who tweeted in 2011 than Kansas Senator Sam Brownback “sucks,” capping it off with the hashtag “#heblowsalot.” She was ordered to write letters of apology to all and sundry.  (She didn’t comply.  Good for her.)  Most recently, there was Hannah Watters, a Georgia high schooler whose photograph of the hallways in her school during changeover (lots of unmasked, tightly bunched students during the pandemic), posted outside school hours, went viral, and who was given a five-day suspension for what can only be called fanciful reasons.

In between, there were stops in Illinois, Indiana, California, Minnesota, and New Hampshire.  Clearly, this isn’t a red state/blue state distinction.  The desire on the part of school administrators country-wide to control literally every aspect of their students’ lives (especially if those students might possibly say something uncomplimentary about those administrators or others in power) is nearly universal.  This is why SCOTUS’s ruling that students have 1^st amendment rights, too, (and the unanimity of the decision except for a very bizarre dissent from Justice Thomas) is so important.  There’s a lot there, but the most important part of their decision, from where Curmie sits, at least, is this:

…from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.  That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.

Yeah, what they said.

An Enemy of the People and the Montana Grizzlies

The first play by Henrik Ibsen (pictured at left) I ever read wasn’t A Doll House, which is probably most people’s introduction to the great Norwegian playwright. Nor was it Hedda Gabler or Ghosts, generally acknowledged today to be, respectively, his best and most important plays. My first Ibsen play was An Enemy of the People; I read it in a college class on Political Ideals as an example of traditional conservatism.

The central character, Dr. Stockmann, discovers that his town’s spa has become polluted, so the hitherto health-giving waters are now in fact poisoning the clientele. At first, local businessmen are grateful to the doctor for his discovery, but that’s before he proposes that the only solution is to shut down the baths until appropriate repairs can be made: a process involving both time and money the burghers don’t want to spend. After all, the waters are central to the town’s economic life, and those bacteria the doctor is complaining about are so small you can’t even see them: how much harm could they do?

Dr. Stockmann becomes a pariah, an “enemy of the people,” to coin a phrase. He bellows that “the majority is always wrong,” and promises to continue his fight even as merchants refuse to serve his family and rocks crash through the windows of his house. Stockmann was presented to those of us in Government 5 as the quintessential conservative for his single-mindedness, his quest for truth, and his refusal to capitulate simply because his was a minority opinion.

This essay isn’t about how far the term “conservative” has migrated from its erstwhile moorings, but rather to observe that Dr. Stockmann was, above all else, a man who believed in the power of truth, in the supremacy of safety over expediency. Needless to say, Dr. Stockmann was not an educational administrator.

In the wake of the Freeh report on the goings-on at Penn State, at which a known pedophile was allowed to continue to claim young boys as victims because it might have embarrassed the university and especially its vaunted and allegedly irreproachable football program to stop him, we get more reports of the same sort of transgressions happening elsewhere: at a high school an hour and a half away, and at a university whose dominance in FCS (a.k.a., Division I-AA) football actually surpasses that of Penn State in the FBS (Division I).

Well, that’s technically not true. The scandal at the University of Montana was already making headlines in the New York Times several weeks before the Freeh report was released; I just hadn’t heard about it until reading Jack Marshall’s trenchant commentary on the topic. The basic story line—one or more members of a school’s most cherished sports team commit felonies; administration does back flips to cover it up—is depressingly familiar. But there’s always a detail or two in which some idiot administrator goes one step beyond the idiocy anyone else anywhere had yet achieved.

Now, to be fair, the Good Ol’ Boy incompetence of Montana officials stretches across all areas of sexual assault, not simply those multiple cases involving members of the football team. Indeed, the most outrageous in a lengthy list of horrifyingly bone-headed moves by Vice President Jim Foley was not, apparently in an athlete-related case. Foley, hearing that a UM student had spoken publicly about having been raped and about the university’s somewhat less than stellar response, sought to punish her. In an e-mail to then Dean of Student Charles Couture, Foley demanded, “Is it not a violation of the student code of conduct for the woman to be publicly talking about the process and providing details about the conclusion?”

In another case, Couture apparently “repeatedly” warned a student, a Saudi national, that he had been accused of sexual assault. Before the actual police had been notified, the man fled to his homeland. This… erm… problematic response was then hailed by university president Royce Engstrom as “timely” and “appropriate” because “We can let people know we have dealt with these (alleged assaults) and that particular perpetrator is gone.” Yeah, well, I’m guessing that maybe the victims would have preferred that you’d done your freaking job, notified the police before de facto suggesting that the perp flee the jurisdiction, and set a precedent of prosecution rather than enabling the flight of a felon.

But we can always return to the staples of such stories: rapes by jocks. What’s your preference, Gentle Reader? The story about Foley’s objecting to the term “gang rape” when a woman was forcibly raped by four football players and an accomplice because the university’s preferred term is “date rape”? These asshats would call it a group hug if they thought they could get away with it. Couture may not have handled the other case very well, but to his credit he replied to Foley’s snot-gram by saying that he’d called it gang rape “because that’s what it was.”

Or Foley’s decision, in the words of Gwen Florio of The Missoulian,

… to delay releasing UM’s final report on the sexual allegations for fear it would coincide with a scheduled hearing on a restraining order filed against Grizzlies quarterback Jordan Johnson, accusing him of sexual assault. “I would prefer to not send this out on that day for the same news cycle the following day,” Foley wrote.

Or the fact that even when the administration, including deans and directors, was urged to attend a webinar entitled “Sexual Assault and Crime on Campus: What Higher Education Leaders Need to Know,” sponsored by the National Association of College and University Attorneys, the university legal counsel suggested that “we’ll be lucky” to fill a room that can accommodate two dozen people? Engstrom couldn’t go, and his designated surrogate skipped it, explaining in an e-mail that her day was “too crazy” to get away.

President Engstrom professed himself “surprised” that the US Department of Justice launched an investigation, which makes him one of the most easily confounded adults in the history of the universe. In all, just in the New York Times article by Jim Robbins, there are references to nine (!) different football players (unless, perhaps, one or more overlap across incidents) implicated in sexual assault since December 2010; that figure doesn’t count the one convicted of biting a woman (the Athletic Director showed photographs of the bite mark to reporters in an attempt to convince them that the bite “was not that serious”). Of course, “implicated” doesn’t mean “convicted.” Sexual assault cases are notoriously difficult to prosecute, especially if university officials, police, and prosecutors have no particular interest in either finding the truth or punishing the guilty.

[Note: for much of the next three paragraphs, I’m quoting or paraphrasing myself in a comment on Jack Marshall’s Ethics Alarms blog, linked above.]

There is, seemingly even more so today than a generation ago, a virtually endemic de-valuing of rape and sexual assault as an issue. The usual excuses (“she was asking for it,” “boys will be boys,” and variations on the theme) get trotted out. The same “blame the victim” mentality comes into play. More problematically (because seemingly more innocently), public relations concerns trump safety (just as Ibsen said the bourgeois mindset would do). We don’t want to make it seem as if an incident is anything but an isolated event, an aberration, an anomaly. There is prudence in this thinking. There is also denial.

I was talking with one of my students a couple days ago about the “training” she has to go through to be able to be a counselor for our high school camp. This “training” consists of watching a stupid video and answering a couple of questions that anyone with a brain could answer without the video, in part because the answer is always the one that most suggests that there’s a problem. Such exercises are met with contempt by students because they deserve to be.

I contrasted this with the training I received 20 years or so ago on rape crisis intervention. This was a 4-day event that contained real information, real strategies, real approaches. Was it worth it? Well, I’ve only used that training three times in 20 years… but I’ve used it three times. That’s me: a middle-aged male whose persona is hardly that of the traditional nurturer. Imagine how many more young women are more comfortable with a female confidante… or, worse yet, don’t talk to anyone. There’s still a stigma attached to being a rape victim, and if the rapist happens to be popular—or worse yet, a star quarterback or something like that—then accusing him brings incalculable social risks to the accuser… and there’s certainly no guarantee of justice at the end of it all.

When a school like the University of Montana fires its football coach and athletic director after the team went 11-3 and made it to the national semi-finals, there’s something up. Maybe that has something to do with an encomium from then-coach Robin Pfugrad about his star quarterback who just happened to be a rape suspect, describing Jordan Johnson’s “tremendous moral fiber.” Look, innocent until proven guilty and all, but just say that “he’s a member of the team until the judicial process runs its course and we’re happy to have a player of his skills on our side of the ball” or something similarly innocuous. Praising a rapist—which Johnson quite likely is, although perhaps it can’t be proved—is tacky, even by football coach standards.

There’s little wonder that there’s a widespread belief that 1). sexual assault is not being treated very seriously in Missoula—not by the university and not by the local police, 2). the looking the other way is especially pronounced when football players are involved, and 3). the intervention of the DOJ is not merely appropriate but necessary.

Conservatism, this is not. Ibsen is scowling. Of course, he always did. Maybe the prospect of a Curmie nomination for the fine folk at UM will cheer him up? Nah, probably not.