The University of Minnesota football boycott and its aftermath remains one of the most talked-about sports stories in the Twin Cities. Now, with the ten suspended players due for hearings today and Friday and fired Coach Tracy Claeys reportedly considering whether to sue the university, the episode bears revisiting.
To help sort through the many confusing and unanswered questions that still remain concerning the boycott (and what led up to it), MinnPost talked to a group of attorneys and experts on sexual violence. Here’s what they had to say:
The Hennepin County District Attorney’s office declined to bring charges. Why didn’t the University accept that?
Because federal law required the U to investigate.
Under Title IX of the Education Amendments of 1972, schools that receive federal funds cannot discriminate on the basis of sex. In 2011, the Office For Civil Rights determined sexual harassment and sexual violence violated Title IX and ordered schools to look into all complaints. The directive, in what’s known as a Dear Colleague letter, reads: “If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”
So even if Minnesota officials wanted to ignore it, they couldn’t. This fact sheet from the Minnesota Coalition Against Sexual Assault (MNCASA) offers more background.
“The No. 1 question I get is, ‘Why can’t we just leave this to the police? Why do schools have to do an investigation and question those who commit sexual violence?’ ” said Nancy Hogshead-Makar, a former Olympic swimmer, sexual assault victim, and now an attorney specializing in Title IX issues.
“The short version is: The police have their interests. They’re concerned with taking away somebody’s liberty, putting them in prison. Schools and businesses, on the other hand, are concerned with keeping their campus safe, and they have a responsibility to keep it safe for everyone.” And, she added, they risk lawsuits if students or employees are harmed.
Were the suspended players given due process?
A better question is whether the players who called the boycott understood what “due process” means, especially in a Title IX investigation.
The simplest definition of “due process” is basic fairness. Two attorneys familiar with Title IX and sexual violence issues said due process in a university disciplinary proceeding differs from a criminal or civil case, something neither the players nor Claeys appeared to grasp.
The severity of the penalty determines the manner of due process, they said. The criminal justice system, where the convicted may go to prison, offers constitutionally-required protections — the right to remain silent, the right to an attorney, the right to confront your accuser, etc. Title IX complaints do not.
“It’s not quite the strict standard you’d see in the criminal justice system,” said Mitchell/Hamline law professor Sarah Deer. “Due process in the context of Title IX means the students in question have the right to be notified what the charges are, and the right to be responsive to those concerns. They don’t have all of the same rights that you have in the criminal justice system. They typically aren’t going to have the right to cross-examine witnesses, for example.
“And the important thing is they absolutely have the right to appeal, and that’s exactly what they’re doing.”
Hogshead-Makar read the leaked 80-page report from Minnesota’s Office of Equal Opportunity and Affirmative Action (EOAA) and believes the U acted appropriately. The players are suspended only from football; they may attend classes pending their hearings.
“As I understand it, based on the report, the school kicked the players off the football team without kicking them out of school or putting a discipline notation on the players’ transcript,” Hogshead-Makar said. “Students do not have a constitutional right to play sports. Schools don’t owe their athletes any constitutional due process rights before removing them from a team. Now, if Minnesota wanted to expel these students, the school would have to provide the players with notice and a hearing.
“Every athlete knows this: You can be suspended from a team for missing curfew, for not having a good attitude. So certainly, athletes can be suspended from a team from a detailed 80-page report that determined there was a violation of the student code involved.”
The father of one of the suspended players tweeted that the alleged victim kept changing her story. How is that allowed?
Experienced sexual assault investigators and counsellors say a victim’s memory improves over time. As the mind and body recovers from the assault, they remember more details, a phenomenon supported by research into the neurobiology of trauma. Defense attorneys often label this “changing their story” to seed doubt in the minds of potential jurors, but it’s actually common and widely recognized, especially by police. In the police report, an investigator told the alleged victim several days after her first interview that she may remember more as time passes.
“These are uncomfortable things to talk about,” said Sarah Beaulieu, a sexual assault victim and rape crisis counselor who serves on the board of the Boston Area Rape Crisis Center. “The kinds of conversations I’ve had with a therapist, which is a completely supportive environment filled with lots of trust, there are some parts of the experience you don’t want to remember. As you’re remembering it and starting to feel more safe with the person you’re talking to, you’re comfortable sharing another part of it.”
Caroline Palmer, the public and legal affairs manager for MNCASA, cited supporting research by Dr. Rebecca Campbell, a professor of psychology at Michigan State.
“What these folks talk about, when you’re in any sort of traumatic situation, you get into a primal mode in a way,” Palmer said. “You’re just trying to survive in that moment. You use instincts to help you survive in that moment. So your focus becomes laser-sharp. You’re going into parts of your brain to keep you in that focused moment and help you get through it. As a result, it takes time to let your brain calm down. Hormones are being released throughout your body. Your body needs to calm down. As you start to recalibrate, your memory will start to come back to you.
“Dr. Campbell says, when you’ve gone through a traumatic situation and you try to piece it together, it’s like you have a desk covered with a whole bunch of different post-it notes and they’re all jumbled together. You have to put them back in some kind or order, and that takes time to do. Sometimes you can’t always get them back into order.”
Palmer added: “This is really pretty well settled across science in many different areas involving dealing with trauma and recovery. Defense attorneys do use this because it’s one of the key ways they can create doubt about credibility; because people sometimes make the assumption that we can all remember things in a linear way. But when you’ve been through a traumatic situation, your memory is all chopped up into those little post-it notes, and sorting it out is really difficult.”
The right questions, asked by a trained and empathetic investigator, can be especially helpful. Retired Rochester police captain and sexual violence investigator Jim Pittenger, who works with MNCASA, recalled a victim he interviewed in the 1980’s. Angry at her attacker, she eagerly talked to police. But in the middle of her statement, Pittenger said a memory spooked her and she freaked out, sobbing and curling up on the floor.
Looking back, Pittenger second-guessed his approach. He questioned her in the same closet-sized interrogation room where they grilled suspects. No victim’s advocate was present. And when she collapsed, Pittenger said he kneeled over her exactly like she told him her attacker had.
“I didn’t even bring a box of tissues in the room,” he said. “The thing that struck me was, what I was doing seemed to be totally wrong for this victim. That’s something I wish I could get across to everyone who investigates sexual assaults. I see it as a big failure for myself, and I hope somebody else can learn from it.”
The police report said the sex “appears to be entirely consensual.” So how could this be sexual assault?
A police investigator made that judgment based on a 92-second video shot by a player early in the encounter.
Supporters of the players say this shows the alleged victim consented. But Beaulieu said that’s not how consent works. A yes at the beginning doesn’t mean yes to everything, or everyone, that follows. At some point between the time the video was shot and more players gathered outside the room, the alleged victim said she withdrew consent.
“Verbal consent is the 100 percent clearest way, and consent is continual,” Beaulieu said. “It’s not like, ‘Hi, I showed up at your house, now you can do whatever you want to me until I leave or until you let me leave.’ It’s about consent from moment to moment, from activity to activity. Just because I’m kissing you doesn’t mean I want you to take off my shirt. Just because you’re taking off my shirt doesn’t mean that I want to have vaginal sex with you.
“Any person, man or woman, has a right to stop a sexual encounter or stop a particular activity within a sexual encounter, and the other person has to respect that and say, ‘What do you want to be happening here?’ ”
And remember: Two years ago, the U adopted an affirmative consent policy requiring unambiguous, communicated willingness from both parties in a sexual encounter. It’s not clear from the police report whether the video showed that.
“It’s both partners’ responsibility to make sure the other partner is enthusiastically consenting to whatever is taking place,” Beaulieu said. “In particular, if you are the person initiating the sexual activity, I think there’s added onus on you to make sure that activity is still enthusiastically wanted.
“Under the best circumstances two people are equal parties. But if one person is dramatically physically larger than the another person, that creates a kind of inequality. If one person is aggressively initiating sexual activity, that creates a different kind of inequality. If one or the other person is incapacitated from drugs or alcohol, that’s not an equal situation. If it’s a group of friends and one young woman, that’s not an equal situation.”
Where was the adult leadership while the players considered the boycott?
That’s the question I’ve heard more than any other.
Before the boycott, someone — a coach, administrator, attorney, even someone who knew an attorney — should have pulled team leaders aside and explained two things: Why federal law required the U to investigate, and why players who avoided criminal charges could still be disciplined by the university. Different forums, different standards to determine guilt. Think of the O.J. Simpson case: Acquitted of murder in criminal court (beyond a reasonable doubt standard), but held liable in civil court (based on a preponderance of the evidence).
Curiously, in announcing the boycott, wide receiver Drew Wolitarsky read a statement sprinkled with legalese (Breached fiduciary duty? Due process?) that suggested input from someone with some knowledge of law — someone who should have known the distinction.
The Family Education Rights and Privacy Act of 1974 (commonly known as FERPA) prohibited athletic director Mark Coyle and university president Eric Kaler from discussing the EOAA investigation details with anyone but the suspended players and their parents. But Hogshead-Makar said Coyle and Kaler could have addressed the report directly with the suspended players.
“School officials and their students can talk with each other; it doesn’t violate FERPA for the athletic director to talk with the suspended players about the contents of the EOAA report,” she said. “They can pull in the ten players individually, have a conversation about it, and ask for their leadership: This is not the issue to ask your teammates to fall on a sword over. You owe it to your teammates to tell them this is not the right issue for them to be using their boycott power.”
Of course, that might not have worked if the majority thought like defensive coordinator Jay Sawvel, who claimed the day of the boycott that the Gopher program was “under attack.” That seemed a popular concept among the Minnesota staff. Last April, at the Minnesota Football Coaches Association’s annual conference, Claeys used the same phrase to dismiss concerns over concussions in football. The Gophers went on to commit eight targeting penalties last season, the most in the Big Ten.
Coaches pushing an us-against-them mentality is nothing new; the “thems” can be anything from the media to an opponent’s slight, real or fictitious. Coaches never tire of this cliched motivation technique. However, claiming you’re “under attack” from the administration while you play in the newest stadium in the Big Ten and a $166 million Athletes Village rises within steps of the football complex seems, well, odd.
Seven of the U’s eight full-time EOAA employees are women, so does that mean they’re biased toward the alleged victim?
Well, the same group investigated a sexual assault allegation against basketball player Reggie Lynch and issued no discipline. As with the football players, the Hennepin County District Attorney’s office declined to bring charges against Lynch, citing lack of evidence.
“In reading that (football) report, it’s awfully difficult to say they were biased,” Hogshead-Makar said. “They explained their underlying thinking extraordinarily well. All of their conclusions are so backed up with evidence. You just couldn’t walk away saying these people were biased, or on a witchhunt, or whatnot.”
Hogshead-Makar continued: “The idea that only whites can be objective in a race discrimination case, or only men can adjudicate sexual assault issues, or only straight people can be ‘fair’ or ‘impartial’ determining LGBT outcomes is offensive. Instead, look at the evidence and the panel’s reasoning behind their conclusions.”