As if colleges and universities didn’t already have enough headaches between the sexual-assault allegations involving their students and stupefying complexities of Title IX gender-violence protocol, the U.S. 2nd Circuit Court of Appeals has made everything even more bewildering. Its July 29 ruling highlights the tribulations now experienced by schools such as Baylor University.
Nagging questions remain about the administrative handling of sexual-assault cases at Baylor and how these specifically justified the hotly contested May 26 toppling of popular Baylor President Ken Starr, celebrated head football coach Art Briles and athletic director Ian McCaw, among others. Former athletics staffer Tom Hill, for instance, has filed a petition seeking all information in the matter, including reasons for his firing.
The 2nd Circuit Court of Appeals ruling only confirms what many of us now realize: Title IX protocol involving campus sexual assaults is every bit a work in progress and has been for several years. If you don’t grasp this, you can’t begin to understand anything else that’s happened at Baylor lately.
This tortuous learning curve has been difficult for students, sports fans, college donors, coaches and campus administrators, leaving some casualties if not outright victims. The deployment of Title IX protocols also proves how academic institutions — however accomplished in the realms of science, history and philosophy — can be lousy excuses for courts of law.
The July court ruling involves a sexual-assault allegation at Columbia University, one with more than its fair share of shadows and doubts. The accused says he and a female classmate who dropped by his residence hall were out strolling when they discussed “hooking up” at her dorm. He says she even provided him with a condom. She says sexual assault resulted only after weeks of his having “coercively pressured” her to have sex with him.
The appeals court focused on whether Columbia — already sweltering under criticism on campus and in the New York press that “it was not taking women’s sexual-assault complaints seriously enough” — took a decidedly “pro-female, anti-male” approach in addressing Jane Doe’s allegations, leading campus decision-makers to conveniently ignore evidence in favor of the accused. The ruling against Columbia makes clear the accused student was left uninformed about campus options available to him. And the witnesses he cited who might have lent weight to his side of things were not interviewed by Columbia’s Title IX investigator. More broadly, it suggests not only are colleges and universities still figuring this whole Title IX thing out but Title IX itself is still changing and evolving in emphasis, guidelines and regulations. Example: Confusion has long reigned over what’s guidance, what’s a mandate.
While the U.S. 2nd Circuit domain doesn’t cover Texas, the ruling holds potential as legal precedent. For instance, a Baylor student this summer told the Trib he was suspended for what some might call consensual “heavy petting” during a party in March 2015. After the controversial sexual-assault conviction of former BU football player Sam Ukwuachu in August 2015, the student was reportedly deemed guilty of “non-consensual sexual contact.”
In her frank and revealing Aug. 5 Trib Q&A, Baylor Title IX coordinator Patty Crawford said that she and her staff regularly consult with the U.S. Department of Education as well as Title IX officers from other colleges and universities, trying to nail down the best systemic practices to protect the victims and ensure justice is done: “It’s so new. And you’re right — every three months we learn a new thing that we all kind of shift [to comply with]. And that’s why all of us revise our policies on an annual basis.”
While Baylor officials stress their priority is student victims who in the past allegedly faced institutional indifference, expectations are that more and more questions will arise about due-process procedures ensuring rights of the accused. National Title IX expert Tamara Rice Lave has said that, in some campus scenarios, plagiarism now requires a greater preponderance of evidence against the accused than an allegation of rape. Yet, one can argue, if a Title IX official rigorously shows steadfast objectivity regarding both the accuser and the accused in sexual allegations, he or she risks a charge of indifference from the victim, justified or not. One can only wonder how much of this confusion, hesitation and misinterpretation over Title IX protocol ultimately consumed and claimed Baylor’s stellar leadership, swept up in an explosive problem long overlooked, then mishandled — possibly even with the very best of intentions.