A tale of three assaults
Nick Roumel
Three recent cases illustrate how colleges are grappling with serious accusations against college athletes.
Jameis Winston. At Florida State University (FSU), Winston is a brilliant quarterback. As a freshman this past football season, he led his Seminoles to the national championship. But a young woman claims he raped her, and the police and university allegedly covered it up so that the football season would not be jeopardized. Prosecution was denied, and there was no discernible University investigation.
Eyebrows were raised because the incident occurred in December 2012, but the prosecutor’s office did not receive the case until November 2013. Along the way, there were a series of apparent missteps, including a detective allegedly telling the accuser’s attorney that her life would be “miserable” if she pursued charges against an FSU athlete. On December 5, 2013, a year after the incident, the county prosecutor announced his office would not pursue charges. Less than two weeks later, Winston won the Heisman Trophy as the nation’s best college football player.
Prosecutors’ discretion is almost never reviewable in the courts, and they enjoy absolute immunity from charging decisions. However, colleges receiving federal funds have certain obligations under Title IX, which in addition to ensuring gender equity in college sports, imposes requirements on colleges where there are allegations of sex discrimination, sexual harassment, and any form of sexual misconduct or rape. The federal Office of Civil Rights (OCR) administers this law, and in a well-known 2011 directive referred to as the “Dear Colleague” letter, stated that schools have a duty to investigate these charges - regardless of how they obtained knowledge of the sexual misconduct, or whether an accuser even comes forward. Furthermore, “a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct.”
Schools must conduct a “prompt, thorough, and impartial investigation,” and may take appropriate action upon a finding of responsibility, up to and including expulsion of the accused. FERPA, the Family Educational Rights and Privacy Act, keeps college Code of Conduct proceedings under wraps. But we know that Winston’s status as a student and football player was clearly not affected, so it is fair game to assume that Florida State made no finding of responsibility against him. He led the school to glory in the national championship, while his accuser is left to wonder if the game is rigged.
Bubu Palo. At Iowa State University (ISU), a basketball player by the name of Yempabou “Bubu” Palo is a fifth year senior, a scholar named to his conference’s academic “first team.” But in September 2012, he was accused of “second degree sexual abuse” in connection with an incident that occurred after he and a friend drove a woman to her home. At the same time, the university charged Palo with violating its Code of Conduct relating to sexual misconduct.
All criminal charges were dropped in January 2013, and Palo was reinstated for the remainder of the basketball season. He received further good news when the Administrative Law Judge who heard his Code of Conduct case found that the charges were not proven by a preponderance of the evidence, and “not founded.”
But that was not the end of the story. An appeal to ISU’s president, Steven Leath, resulted in a reversal of the ALJ’s decision in August 2013 — and a finding of responsibility against Palo. He was once again dismissed from the basketball team. The Board of Regents upheld an appeal of Leath’s decision in December 2013. The decision came five days too late for Palo to transfer to another program under NCAA rules.
Palo then went to the courts — a final shot to get back on the hardwood. And in a surprisingly scathing decision, the Iowa district judge issued a temporary injunction restoring Palo to the team. He noted that while the ALJ was in a position to observe the credibility of the witnesses firsthand, Leath was not. He added that the brevity of the Regents’ decision appeared to be a “rubber stamp,” despite taking three months to issue.
The ALJ also dismissed Iowa State’s concerns that Palo’s presence on the basketball team tarnished the University’s “reputation and image and posed a threat to other students.” He reasoned, “If this is true, then why renew Mr. Palo’s scholarship, allow him to remain a student in ‘good standing,’ and have full and unrestricted privileges as an ISU student, other than participating in basketball?”
The Iowa Supreme Court denied ISU’s emergency appeal to stay that ruling, and Palu has been again reinstated to the team. Defending his actions, Leath said, “Our misconduct policy is very different from the legal standard. The only people who saw it differently were people who had never worked with our misconduct code.”
In the meantime, Palo’s legal fight to overturn Leath’s finding of sexual misconduct continues.
Brendan Gibbons. Right here in Ann Arbor, the University of Michigan recently expelled Brendan Gibbons, the football team’s kicker and a graduate student in the School of Social Work, for sexual misconduct in connection with an accusation of rape. What is astounding about this case is that the incident occurred in November 2009. Police records indicate that the accuser reported the incident but declined to press charges, and there were allegations that Gibbons’ friend and teammate intimidated her against following through. The police conducted a meticulous investigation, but given the accuser’s non-cooperation, ultimately closed the file.
There the case lay dormant until this season, when a community activist, armed with a copy of the police report via the Freedom of Information Act, posted it on his website in August, 2013. Perhaps not coincidentally, the University initiated Code proceedings against Gibbons. Nonetheless, Gibbons played the entire season except for Michigan’s last two games. His absence was initially explained by his coach as because of a “muscle tweak” and then “family issues.” But the real reason was Gibbons’ December 19, 2013 expulsion, after U-M’s November 20, 2013 finding that “the Respondent engaged in unwanted or unwelcome conduct of a sexual nature, committed without valid consent, and that conduct was so severe as to create a hostile, offensive, or abusive environment.”
The media and internet commenters are incredulous that this case took more than four years to resolve after U-M first became aware of the allegations, as well as the apparent cover-up by University officials. The alleged rape occurred before Gibbons ever made a kick, and he was expelled after having become the fourth-leading field goal kicker in Wolverine history. U-M’s Office of Student Conflict Resolution (OSCR) states that “All complaints must be submitted to the RC [Resolution Coordinator], in writing, within six months after the incident(s) alleged in the complaint. The RC may waive the six-month limitation when a late submission is reasonable.” In Gibbons case, it is plausible that U-M interpreted its Title IX obligations to transcend any strict deadlines; many schools, including Duke, have eliminated all statutes of limitations for initiating grievances relating to sexual misconduct.
Despite U-M’s recent finding of responsibility against Gibbons, the Washtenaw County Prosecutor Office has stated it will not re-open the criminal inquiry.
Post-Game Analysis. All three student-athletes were publicly accused of rape; all reportedly claimed consent as a defense. Alcohol was a factor in at least two of the cases. None of the three were criminally prosecuted, where a conviction requires proof beyond a reasonable doubt. Palo and Gibbons, however, were nonetheless found responsible for sexual misconduct under their schools’ Code of Student Conduct. Those procedures bear reviewing.
Again referring to OCR’s “Dear Colleague” letter, accusations of sexual misconduct are dealt with under streamlined grievance procedures. These procedures do not require a hearing, and OCR strongly discourages cross-examination or direct questioning. The OCR also has required federally funded schools to reduce their standard of proof in sexual misconduct cases to a “preponderance of the evidence,” and has directed schools to stop using a “clear and convincing” standard of proof if they are doing so. (U-M still uses “clear and convincing” for all other violations of its Code.)
While Bubu Palo apparently had a hearing before an Administrative Law Judge, Brendan Gibbons had no such luxury: U-M’s procedures in sexual misconduct cases do not permit them. They state, “[I]nvestigations will not involve a hearing or require that participants meet together. If the evidence supports (based on “a more likely than not” standard) a finding of responsibility, the matter will proceed to the sanctioning process.”
Moreover, these accused will have a lifetime stigma. There are three ways that the finding of responsibility for sexual misconduct can be disclosed to other educational institutions. First is without consent. A university such as U-M has discretion under the Code of Federal Regulations to disclose responsibility findings to other educational institutions if there is “legitimate educational interest.” Second, when applying for grad programs or schools or even certain jobs, an applicant may as a condition of application have to sign blanket consent for the prospective program or employer to obtain records from the previous institution. Third, and perhaps most seriously, there is a “self-disclosure” requirement, if (for example) any future application asks if the person has ever been subject to academic or other proceedings, and/or suffered any sanctions, while attending a post-secondary school. Most, if not all, schools ask this question, as do some employers.
For athletes, the Internet is another source of disclosure that cannot be escaped. For Jameis Winston, who has neither been found guilty nor responsible for any sexual misconduct, there are nonetheless nearly half a million Google hits for “Jameis Winston rape.”
Those who make accusations of sexual misconduct also suffer greatly. They must disclose private and intimate details, endure long investigations, and sometimes face intimidation. Accusing athletes is a whole ‘nother ballgame. Many are still worshipped as heroes, and have their alleged misdeeds minimized for the sake of sports glory. It is no wonder that studies reveal that most sexual assaults go unreported, while their victims face trauma and other lingering after-effects.
Title IX is laudatory and well-meaning legislation. But in cases of sexual misconduct, there is a palpable tension between accusers — who feel their colleges are not discharging their legal obligations to keep them safe — and the accused, who raise legitimate concerns about the sufficiency of due process. In the meantime, colleges and the courts struggle, sometimes with great clumsiness, in striving to achieve the right balance.
