Craig Ashton and Ed Schade spent some time on a recent episode of All Things Legal discussing a series of sexual assault scandals has rocked Baylor University over the past two years, with no indication of that stopping anytime soon.

Image adapted from photo by D. J. Yueng. Used with permission (CC BY-SA 4.0)

Image adapted from photo by D. J. Yueng. Used with permission (CC BY-SA 4.0)

Baylor has a long and troubled history with sexual assault, and its handling of sexual assault claims.

  • In January of 2014, former Baylor linebacker Tevin Elliot was sentenced to 20 years in prison for sexually assaulting a Baylor student. Two other students testified that he had assaulted them as well, and reports indicated that he had assaulted a fourth student.
  • In August 2015, it was reported that Baylor defensive end Sam Ukwuachu had been indicted more than a year previously on two counts of sexual assault against a female student. Despite the indictment, Ukwuachu had been allowed to continue to participate in team activities. It also came to light that he had transferred from Boise State to Baylor after being removed from the Boise team in response to allegations of violence against a female student. Evidence indicated that Baylor’s coach was aware of these earlier allegations.
  • Ukwuachu was convicted on August 21st of sexual assault. In response, the Baylor Board of Regents announced the hiring of the law firm Pepper Hamilton to look into the school’s handling of allegations of sexual violence against female students.
  • While the external investigation was going on, former Baylor player Shawn Oakman was arrested in April of 2016 on charges of sexual assault against a Baylor graduate student. Oakman had previously been accused of assaulting his ex-girlfriend in 2013, but was not disciplined by the school at that time.
  • The day after Oakman was arrested, ESPN reported that Baylor failed to investigate an assault report filed against two football players for more than two years, in violation of federal law.
  • In May, Baylor announced that Pepper Hamilton had completed its investigation, but did not release the law firm’s report. A few days later, ESPN reported that police records showed that Baylor had failed to act on additional reports of sexual assault and domestic violence made against other Baylor players. On May 24th, the school’s Board of Regents announced its decision to remove Ken Starr from his role as school president. On May 26th, the school released Pepper Hamilton’s findings, which indicated that the school had failed to implement Title IX, and that administrators had engaged in victim blaming. In response, the school announced the firing of Baylor football team’s coach, Art Briles.
  • On October 3, Baylor’s Title IX coordinator resigned from the school, alleging that school administrators had obstructed her investigations, with a focus on “protecting the brand” of the school.

While the school’s actions indicated that something had gone horribly awry, little specific information was released as to what had motivated the firings of Starr and Briles. But in late October, several regents of the school approached the Wall Street Journal and revealed the unsuspected depth of the school’s systemic problems. As it turned out, Pepper Hamilton found that since 2011, 17 women had lodged reports of sexual assault or domestic assault again 19 players on the team. Four of the accusations involved gang rape. In at least one instance, Briles knew about a complaint, and failed to act.

One board member summarized the situation by saying, “There was a cultural issue there that was putting winning football games above everything else, including our values.”

The evidence indicates that Baylor has many court cases and further indignities to look forward to over the next few years.

As Pepper Hamilton found, Baylor clearly and repeatedly violated the requirements of Title IX. At this point, we’ll allow Craig and Ed to explain what Title IX is, and how it applies to the school’s mishandling of sexual assault accusations against its players.

Craig: “So, Title IX basically says that you… must not be subjected to discrimination or denied any benefits based upon your gender under any education program. What is happening with Title IX is that when there’s a sexual assault—and usually it gets into the news because there’s an accusation that a sexual assault or rape occurred on campus—and usually by someone on a sports team, that many times there is favorable treatment to the athlete, because there’s a lot of money involved. [Or at least] that’s the factual allegation.

“And so what the victims have been doing is saying, ‘Look, you didn’t discipline this person. You let him stay on campus. I was afraid to go to campus. He’s a very important person. I’m a little person. And I ultimately had a nervous breakdown, I couldn’t go to school, and I’m not getting equal protection under Title IX [because] the benefits that I’m [entitled to] are being impeded based upon my gender, and ultimately I want a civil cause of action for damages.’ And they’ve been successful.”

While Title IX was never designed to be applied to sexual assault cases, the approach has proven to be effective in previous litigations.

Craig: “It’s an interesting use of the Title IX cause of action, because I think to begin with it was to make sure that if you had gymnastics for men, you had [to have] gymnastics for women, etc., so there’s got to be equal opportunity in terms of sporting events. But it’s now the way you’re treated on campus, which I think is a really good use and evolution of this.”

Ed Schade: “Yeah, it’s good lawyering. They expanded something that was there and were able to use it to benefit their client as well as equalize the playing ground for women on campus that [are victimized by] some big giant sports figure that’s looking at multimillion dollar contracts…”

Ed went on to raise the example of Jameis Winston, a Heisman winning Florida State University football player who was accused of raping a woman in his dorm room in 2012. While his victim, Erica Kinsman, quickly reported the assault to police, and later to the school, everyone involved dragged their feet for more than eight months, and the district attorney chose not to prosecute. Ultimately, Kinsman sued Florida State University for infringing upon her Title IX rights, and the school chose to settle by paying her $950,000. Kinsman’s case, and those filed by other victims, have made it patently clear that schools often do everything they can to protect star players who are convinced of misconduct—hence the recent popularity of using Title IX-based suits to seek compensation.

Craig raised the point that more recently, there have been a number of countersuits filed against women who have wrongfully accused would-be victimizers: “The thing is, you’ve really got to worry about… if an accusation is made, you also have to protect the rights of the people being accused, because this is usually a no-witness situation, [such as in the case of] the lacrosse team at Duke… their lives were pretty much ruined. And there’s a defamation cause of action going on now, University of Virginia against Rolling Stone as a result of reporting a [fraudulent] rape case… There’s a fine line here, but you also have to respect the victim. At the very least you have to do a thorough investigation.

“The irony is, the president of Baylor at the time—since 2011, 17 women have come forward and accused members of the football team of sexual assault, and a couple of them have accused [the team] of gang rape—[was] Ken Starr. He was the one that was entrusted to investigate Bill Clinton, which led to his impeachment. Ultimately he took over as dean at Pepperdine, where I went to law school [before becoming the president of Baylor in 2010]. He had to resign over this. The circular nature of the processes that led him to prominence have actually come back now to cost him a job.”

The evidence shows that Baylor was at the very least grossly irresponsible in its response to the multiple rape accusations lodged against Baylor players.

Craig: “[The campus police] wouldn’t turn [evidence] over to the director of Title IX investigations at Baylor… she didn’t get access to the police reports. Some people who were higher up—vice presidents at Baylor—said the women were mentally ill. And then it came out, they basically didn’t do a thorough investigation… so now they find themselves in pretty significant hot water. Usually it’s not ultimately the crime [that causes controversy], it’s the handling of it. They were covering up information, and you just can’t do that. Football’s important, but it ain’t that important.

“Under Title IX, and this is the nice thing about it, there’s some teeth. Once the Title IX thing gets rolling, and if you’re not doing your job, it’s probably ultimately going to come to light.”

If a single case of sexual assault led Florida State University to settle with Erica Kinsman for nearly $1 million, it’s clear that the possible legal and financial repercussions for Baylor University may well be astronomical. This story certainly won’t be ending anytime soon.