Baylor & Institutional Conflicts of Interest

In addressing sexual assault, the nation’s campuses are facing a crisis of due process. Accused students are effectively presumed guilty and are routinely denied the means with which to defend themselves.

The popular image, however, is the reverse—that of campuses awash in violent crime, with police unwilling to unfair treatment of accusers. Some of this image comes from the misleading rhetoric of demagogic politicians, such as Kerstin Gillibrand, and anti-due process groups such as Know Your IX. It also is the direct result of OCR and White House statements and actions since 2011.

But there are two truthful elements that help sustain this broader, inaccurate, narrative. First: college women are sexually assaulted in disproportionate numbers, compared to the broader population. BJS data indicates that women aged 18-24 have the highest sexual assault rate (though even among this group, higher for non-students than for students). And some percentage—no data exists on how much—of these assaults are committed by a student at the victim’s institution, the only type of cases routinely considered under the jurisdiction of campus disciplinary processes. These figures don’t in any way justify the Obama policies (championing a parallel “justice” system for college students, without any police involvement), but they do show that sexual assault has to occur at virtually any campus.

Second: there are some cases in which universities do favor the accused. (Whether colleges, rather than police, should handle such crimes is, of course, another matter altogether.) Almost all of these cases have involved allegations against men’s basketball or football players, at institutions in the Power Five (ACC, SEC, Pac-12, Big 10, and Big 12) conferences—conferences where men’s basketball and football programs mean big money for the institutions, and where alienating the sports programs can cause problems for administrators. Cases at Oregon, Michigan, Florida State, and Tennessee involved credible claims of administration favoritism of accused athletes; cases at Missouri and Notre Dame were (at the very least) far murkier.

The most prominent member of this list is Baylor, which has announced the dismissal of its football coach and the demotion of its president, Ken Starr. Problems at Baylor first attracted national attention last year, in a case involving football player Sam Ukwuachu. A jury found him guilty of rape beyond a reasonable doubt, while Baylor’s process, using the OCR-mandated preponderance-of-evidence threshold, found him not guilty.

This outcome reflects the superiority of the legal system, rather than colleges, to adjudicate serious felonies. But it’s also hard to escape the sense that—contrary to most college cases—Baylor tilted its internal processes to favor Ukwuachu.

Since then, ESPN’s Outside the Lines has devoted considerable resources to the Baylor case. (The storyline is more appealing for the network than looking into Yale’s abuse of process toward basketball player Jack Montague, it seems.) The reporting convincingly argues that Ukwuachu wasn’t a one-off case, but rather part of a systemic pattern. Perhaps appearances are deceiving, but it certainly seems as if Baylor (a faith-based institution) recruited athletes with a penchant for violence, and did little or nothing to keep its students safe. This is the sort of conduct that resulted in successful Bush-era lawsuits against Colorado, Arizona State, and Georgia. Unlike the student-on-student allegations that dominate contemporary discourse, this sort of issue seems to me a perfectly appropriate Title IX case—since university action played such a key role in bringing the rapists to campus.

In making its personnel moves, Baylor released a summary suggesting retaliation against an accusing student. Other reports indicated that the Waco Police might have downplayed crimes committed by Baylor football players. No specifics exist on either front, but both would be appropriate matters for civil lawsuits or (regarding the police, if the claims are true) possible criminal prosecution.

In coming days and weeks, we doubtless will hear from the usual suspects about how events at Baylor justify OCR’s attacks on due process, or Kerstin Gillibrand’s fear-mongering, or Know Your IX’s crusade to create a guilt-presuming atmosphere on campus. So it’s worth recalling three critical differences between events at Baylor and customary campus rape cases:

(1) Some of these accusers went to the police. Their allegations were tested, under oath and in open court, and found valid. The accused received a full opportunity to defend themselves, and were found wanting.

(2) The university—to what extent remains, I suppose, somewhat open to debate—had a campus disciplinary process that favored accused students, a situation that (outside of the athletic context at large schools) almost never happens.

(3) In at least some of these cases, the rapists never would have been on campus but for university officials actively soliciting their presence at Baylor. Ukwuachu, for instance, had been kicked off his previous football team (Boise State) for disciplinary issues. It’s hard to imagine Baylor admitting a student who simply had applied to the school with such a record. For this reason, I disagree with Dan Wetzel’s argument that Baylor’s football program shouldn’t be punished. Based on the (incomplete) information publicly available, this scandal wouldn’t have occurred but for football. So weakening football seems like a good thing.

One final point: The Baylor case provides a reminder of what everyone already knew—that in adjudicating serious felonies in which both the accuser and the accused attend the school, colleges and universities have an inherent conflict of interest. In Baylor’s, that conflict tilted in favor of the accused. But on this front, Baylor is the exception that proves the rule.

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