As Baylor University works to bolster its response to sexual assault allegations, some Waco defense attorneys fear the school may overreact, placing accused students’ due process rights in jeopardy.
At the same time, the attorneys acknowledge the difficult task of balancing victims’ wellbeing and interests with the rights of the accused.
Recently, Baylor’s board of regents removed its president, head football coach and others, and the athletics director resigned in the wake of the university’s widely publicized failings in its handling of sexual assault allegations, including those against athletes and other students.
Pepper Hamilton, a Philadelphia-based law firm hired by Baylor regents to investigate Baylor’s response to sexual assault and other accusations, found fundamental failures in Baylor’s processes and made numerous suggestions about how it can improve.
“Baylor’s efforts to implement Title IX were slow, ad hoc, and hindered by a lack of institutional support and engagement by senior leadership,” a summary of Pepper Hamilton’s findings provided by the regents said.
Baylor said it has committed $5 million to efforts to bolster how it responds to sexual assault reports. Those include adding more investigators and more staff to the school’s Title IX office, which Baylor did not create until three years after the Department of Education strongly urged universities to do so.
Baylor will not disclose how many complaints alleging sexual assault, domestic violence, stalking, sexual harassment and non-consensual sexual contact its Title IX office has received, and Patty Crawford, Baylor’s Title IX coordinator, did not return multiple phone messages seeking comment for this story. Baylor spokeswoman Tonya Lewis also did not return messages.
But, the school’s pledge to expand the office and the recent evolution of a cottage industry that local criminal defense lawyers say has developed from the growing number of calls they are fielding from Baylor students charged with Title IX violations show that such complaints have drastically increased in the past 18 months.
What is unclear is if that increase is because of Baylor’s renewed efforts to respond to them or because increased awareness and public scrutiny sparked by the scandal and the sexual assault convictions of two Baylor football players since 2014 has emboldened more victims to come forward.
Either way, the burgeoning increase has defense attorneys worried about college students’ due process rights. They also worry that Baylor’s response may be swinging the pendulum back too far in the other direction, though the attorneys recognize the difficult position in which the university finds itself.
They say it appears from students they are talking to that the widespread reports that Baylor officials were dismissive, unresponsive, and, in at least one case, retaliatory against sexual assault victims is now possibly causing Title IX adjudicators and investigators to overreact.
Defense attorney Rob Swanton said he and his partner, Phil Frederick, have received more calls from students with Title IX inquiries in the past 18 months than they had in the past 10 years.
“I am concerned that those routine procedures do not afford people the same due process, but then Baylor is not necessarily required to. It is not a criminal proceeding,” Swanton said.
“As a criminal defense lawyer, I have concerns that there are not due process policies and procedures in place to protect my clients’ interests. To be fair to the universities, I think they are in an untenable position because they are being asked to do things that are very difficult, and that is to protect both the accused and the accuser. That is a very difficult thing to do, given the nature of the procedures that are implemented.”
The attorneys contacted for this story declined to discuss specific cases they are handling because of attorney-client privilege and because they didn’t want to affect the outcomes of pending Title IX cases. But they all say they have handled cases in which young men were expelled from Baylor with very little evidence of guilt and without the due process afforded them in the criminal justice system.
Waco attorney Michelle Tuegel says she and her partner, Russ Hunt, receive a “handful” of calls weekly from Baylor students seeking advice on Title IX complaints. They have gotten so many calls that attorney Tuegel recently added a “Title IX” section on the law firm’s website as a helpful guide to students and their parents.
“One of the dangerous things in these cases — and of course I see it from the perspective of the accused because that is who I represent — but I am also a woman, and I know people who have been victims of campus sexual assault. Every young woman does,” Tuegel said. “But at the same time, I think in these cases, and all sexual assault cases, really, the danger is it just takes the word of one person, and that is all it can take.
“If the (Title IX) adjudicator and the investigator believes her, that is all it takes to completely ruin somebody’s future. And in the context of all of this, especially when there is so much going on and so much scrutiny for a university like Baylor, just as much as we can believe that someone would be terrible enough to commit sexual violence, we have to believe that someone would be terrible enough to make it up. That is an equally scary thing. I think we are going to see more and more students who need help in this process with everything that is going on.”
The attorneys worry that their student clients, in their haste to respond to a complaint notice and, in many cases, get it cleared up before their parents find out, will rush in too quickly, forfeiting their right to counsel, right against self-incrimination and other due-process guarantees.
Jeremy Faulk, a defensive tackle who transferred to Baylor after playing at Garden City Community College in Kansas and at Florida Atlantic, told ESPN’s Outside the Lines that Baylor violated his due process rights when he was removed from the team and the school this week.
Faulk said he lost his scholarship Tuesday after coaches questioned him about an alleged incident at Florida Atlantic and an alleged sexual assault on the Baylor campus in April, when he was on the Baylor team. No charges were filed in either incident and Faulk denies he sexually assaulted anyone, ESPN reported.
Faulk did not return messages left on his cellphone this week.
Faulk’s release from school angered his former coach at Garden City and at Florida Atlantic, Jeff Sims. Sims told Outside the Lines that Baylor is trying to rid itself of anyone who has had an allegation made against him, whether it is true or not.
Faulk told Outside the Lines that he received word from the university that his withdrawal from school is complete, even though he didn’t ask to be released. He faulted the school for unfairly releasing him before he got a chance to clear his name.
“Baylor lays it out like the worst punishment you can receive under the Title IX process is to be expelled from school,” Tuegel said. “But the reality of it is that when a student is expelled under Title IX, what does that mean for his reputation, for their future academic and professional careers? For some of them who are athletes, whose whole lives rest on that, for them to be able to get their education and pursue whatever sport they are involved in, that is all gone if they are expelled. Yes, technically, they are just expelled, but we all know it has more far-reaching consequences than that.”
Tuegel said in most cases, the first indication to a student that there is a problem comes in the form of a letter or email from the Title IX office that a complaint has been lodged. There are no details about the allegations. The office informs the student he or she has a certain date by which to contact the office and tell his or her side of the story.
Students who invoke their Fifth Amendment right against self-incrimination or ignore the notice are viewed as uncooperative, deemed guilty and disciplined, including expulsion, Tuegel said.
The accuser and accused tell their stories separately to investigators and an adjudicator. The adjudicator, not a panel or a jury of one’s peers, determines guilt or innocence using a burden of proof standard far less than the “beyond a reasonable doubt” required in criminal cases. Cases are appealed to a panel. The panel’s decision can be appealed to the university president.
Attorneys can accompany the student, but are not allowed to ask questions, cross-examine the complainant, present evidence or address the adjudicator, Tuegel said.
Tuegel said a Title IX investigator told her at the first meeting she attended to sit there like a potted plant.
“The process is confusing and protocols are fraught with — even for a student who is absolutely as innocent as the driven snow — it has a lot of potentially dangerous situations for an accused person who says things that could be taken out of context and used against them in a criminal proceeding,” Tuegel said. “They are handing over their cellphones, text messages, social media pages. They are providing all sorts of contexts that normally, as a criminal defense attorney, I am very concerned about providing that information until I have reviewed it and I know that it helps my clients. Some of these students are going in and doing it without advice from anyone, and that is scary.”
Waco attorney Vik Deivanayagam represented former Baylor basketball players LaceDarius Dunn in the alleged assault of his girlfriend and Rico Gathers in a shoplifting case. Dunn was cleared by a grand jury and Gathers was placed in the DA’s pretrial diversion program. Both remained in school and on the team, with Dunn becoming the Big 12 Conference’s all-time second-leading scorer and Gathers the No. 3 rebounder in the conference’s history.
‘Lack of consistency’
“We have definitely gotten a lot of calls related to Title IX complaints, and I can tell you that some cases are better than others,” Deivanayagam said. “The guidelines seem to be across the board. There is a lack of consistency in what we are seeing in those cases. We are getting different results for cases that seem to have similar fact situations. That is the frustrating thing. There seems to be a lack of consistency in the decision-making process.
“Not every case is a sexual assault case. Sexual assault cases are obviously very serious and need to be treated seriously. But there are other cases that are not as serious that the use of discretion would be well-advised, and at this point, no one wants to exercise any discretion.”
Deivanayagam said it is hard to give good advice because one of the things his clients rely on is his calculated prediction about what the outcome might be.
“It is hard for me to tell them what is going to happen at Baylor because it changes from week to week and month to month. The results are so varied, I don’t know what is going to happen,” he said.
Besides the lack of consistency, Tuegel said there also appears to be a rush to judgment in many of Baylor’s Title IX cases.
60 day timeline
“Title IX is a good thing, but it can also be used too aggressively to the detriment of students who are being accused really quickly,” she said. “The federal government recommends that a Title IX investigation be done in 60 days. You and I both know that in the criminal justice system, a sexual assault case cannot be done in 60 days. It is never done in 60 days. They usually can’t even process forensic evidence in that time frame. So when you think of it in those terms, when they are making those decisions in that short time frame, it is concerning.”
Deivanayagam said the issue is compounded by the intense scrutiny of Baylor officials and the fact that they have difficult tasks to perform without sufficient resources.
“The basic issue is that Baylor is being asked to make a lot of difficult decisions and they don’t have the resources they need to investigate these cases properly,” he said. “They don’t have a lot of the safeguards in the criminal system that would allow them to investigate and to make proper decisions. It’s like they are having to work with an arm tied behind their back.”
Deivanayagam added, “It is an unfair situation to ask them to mete out the punishment without the ability that the criminal justice system has to really find the truth. And even with all those safeguards in the criminal system, I think we can agree that it doesn’t always turn out right. There are unjust results, and that is with a system with a lot of safeguards. In a system with little safeguards, there is bound to be bad results.”
When there are bad results, people line up to point fingers and file lawsuits, Swanton said.
“Nationwide, schools have a reasonable fear of being sued coming and going,” Swanton said. “They run the risk of being sued by accusers if they don’t do anything and run the risk of being sued by the accused for doing too much. And that is a pretty unfair position to be in when they are expected to be the investigator/prosecutor under a system that does not have a really firm set of rules and regulations.”