Jauregui Law Office Quora Answer: OF COURSE NCAA Athletes Face a Profound Anti-Male Bias When it Comes to Sexual Misconduct and Title IX!!
Title IX sexual misconduct respondents find their lives destroyed because of accusations that bring them into the intersection of devastating tendencies: our condemnation of rape, our call for punishing the rapist, our wish to compensate the victim (who is most often a woman and who is most often physically weaker), and our inability to forgive (particularly those whom we dehumanize). In addition, NCAA college athletes, as sexual misconduct respondents, immediately fall prey of two further devastating stereotypes—the sexualized black male (1) and the entitled jock (2). Put all of these explosive elements together and you can see why of all people responding to sexual misconduct in college, NCAA athletes need to lawyer-up the fastest. (3).
Consider TW’s case against the University of Oregon, because it illustrates how these anti-male stereotypes came together to destroy an African-American athlete’s life. Keep in mind that UO should have kept all of TW’s information confidential, both under FERPA, and as part of the deal that closed an investigation from the Department of Education’s Office of Civil Rights about UO’s anti-male discrimination against TW. But this information is now forever public because somebody at UO violated this deal and ended TW’s confidentiality. And now only one side of TW’s case, the one that badly stereotypes him, lives forever on the internet as part of USA Today’s Network investigation on NCAA athletes and Title IX. (4). Somebody at the UO thought it was #woke and #metoo-justified to shame TW forever. (5) To do so, this person strategically whispered to the media just one side of the story—the one that brands UO as a sexual predator. (6) For this UO employee, TW, just as probably any other male respondent, particularly NCAA athletes and respondents of color, does not deserve our forgiveness (even if they did something wrong, which in this case we do not know) and the internet-based media is just another shaming tool (7). That is the bad that comes from using anti-male stereotypes in sexual misconduct: men get hurt and lose their reputations for ever.
The USA Today Network’s investigation also attempted to look at systemic data on reports and investigations of sexual misconduct only against NCAA athletes. (8) They acknowledge that their methodology and the data sample are flawed. (9) But still, what their evidence suggests, if anything at all, is not what they expected: it shows systemic bias exists against NCAA athletes. Systemic anti-male stereotyping is so dangerous, that even an appellate court case, Doe v. Purdue, described to Title IX staff how anti-male stereotypes can be unjust to the respondent. (10). While John Doe was not an NCAA athlete at Purdue, he happened to be in Purdue’s Navy ROTC program—a group which potentially provided the same fuel for anti-male stereotyping as playing for the NCAA would have. On these facts, which clearly show an ongoing friendship between John and Jane, John got suspended. That result is mind-blowingly unfair and unexpected in the real world, but normal in the college Sexual Misconduct and Title IX world that is mostly ruled by female staff (11), who have no problem stereotyping men:
“John also recounted evidence that he thought inconsistent with Jane’s claim of sexual assault: she texted and talked to him over the holidays, sent his family a package of homemade Christmas cookies, and invited him to her room when they returned to school in January. He also provided details suggesting that Jane was troubled and emotionally unstable, which he thought might explain her false accusations.” Doe v. Purdue, id, at 4.
“A week later, Sermersheim sent John a perfunctory letter informing him that she had found him guilty by a preponderance of the evidence of sexual violence. She suspended John from Purdue for one academic year.” Id at 6.
Keeping in mind the unfair and extreme use of anit-male stereotypes by Title IX staff, it is no surprise then, that the USA Today statistics, if believed, evidence the bias that male stereotyping creates against NCAA athletes in sexual misconduct proceedings under Title IX. They show that the Title IX sexual misconduct policies hit male NCAA athletes more harshly than it hits anyone else. This means these athletes suffer disparate impact, which violates their rights under Title IX, because of anti-male stereotyping. That is, the same “sexualized” and “entitled” stereotypes that played out in TW’s story, play out across the cohort in this admittedly unreliable sample. As a result:
• Fewer than 3% of their students were athletes, but athletes made up nearly 9% of the students found responsible for sexual offenses.
• One of every 12 names on that list belonged to an NCAA athlete, even though their ratio of enrolled students at those same schools during that time was three times fewer — only one in 36.
• Forty-seven athletes appeared on the list. Nearly two-thirds — 30 — played football. Their representation among disciplined students was more than eight times higher than non-football players. (12).
Worst of all, male-stereotyping bias stains everything that should be fair and pristine for both complainants and respondent-athletes, including the national press about Title IX respondents, NCAA male athletes in general, and the college experience. The USA Today articles are methodologically flawed. And they admit as much. Yet, their political narrative takes a wild causal jump to suggest that college athletes are a risk to college women. In so suggesting these articles create fake news and stoke the anti-male bias fire that causes so much pain to all men responding to sexual misconduct (13). The article’s wild causal jump consists of an ipse dixit, a false argument that something is true—say “the Trump impeachment is an attack on democracy”—because someone in authority— say Trump—states it is true. Here, the flawed data gets an ipse-dixit expert-washing that turns it into true “hard data” through the use of misleadingly authoritative labels constructed around a Mr. Foubert, who presents not as an anti-male stereotyper, but rather as qualified guy, through his authority as a “Dean” and a contractor with the United States Army. In the ipse-dixit world, we are asked to skip over the seething bias against NCAA athletes necessary to turn flawed data into “hard data”, to now realize that:
“What this tells us is that hard data show athletes to be more dangerous to women than nonathletes, and football players in particular are more likely to commit sexual violence against other college students,” said John Foubert, a rape prevention expert for the U.S. Army and education college dean at Union University in Tennessee.” (14).
The conclusion is simple and supported with evidence: while any man responding to sexual misconduct in college faces high chances of suspension and expulsion, the risk increases exponentially when that man happens to be an NCAA athlete. They need to lawyer up.
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
Endnotes:
1. “Tall and strong with blazing speed,… the 6-foot-3, 220-pound athlete played his first NCAA game…He initiated a conversation with one by posting hearts on her photo. He reached out to the other through a direct message saying, “your so gorg (sic).”… On her first date with Wallace, the athlete wanted sex but she told him no,… he “pinned” his leg over hers so she couldn’t move…When she [the second complainant] woke up the next morning, Wallace began kissing and feeling her body again…”
Kenny Jacoby, A football star was expelled for rape twice. A secret deal scrubbed it from his transcript, USA TODAY NETWORK, Updated 12:09 p.m. EST Dec. 16, 2019, available at: https://www.usatoday.com/in-depth/news/investigations/2019/12/12/oregon-ducks-player-accused-rape-plays-different-ncaa-school/4366387002/?fbclid=IwAR2r39LTouTvReYUGlyVXoKDLwTM-fMViCAXOYKKJOcZ7vi7wGKTIRgzx5A
2. “[TW] had the qualities every college football team wanted…he’s still a much-discussed draft prospect for the NFL. That’s because the national organization that regulates college athletes has no penalties for sexual, violent or criminal misconduct. Even when expelled from school for rape, the NCAA allows athletes to transfer elsewhere and keep playing.” Id.
3. See our FAQ’s to understand how much you need a lawyer. Available at: https://www.studentmisconduct.com/services
4. See note 1 supra.
5. “Oregon promised Loleta Wallace that the August 2018 resolution agreement would “not be discoverable or releasable” under the Freedom of Information Act, but the USA TODAY Network obtained a copy from a university source.” [Emphasis added] Id.
6. The employee who leaked these documents did not include what is partially known of TW’s defense—for example, that the police report has evidence of confirmation, including that “She found it respectful when Wallace ceased his attempts, she added.” And that there was an ongoing relationship, “On their next date, …”. Id. Nowhere to be found, because it seems to not have taken place, even though UO is a public university, is evidence that TW could ever cross-examine the complainant to test the veracity of their stories and the viability of his explanations. On the basic role of cross-examination for the “he said-she said” quagmire of Title IX sexual misconduct please read: https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris
7. “The Department of Education told the USA TODAY Network that it neither approved nor endorsed the deal and acted simply as a neutral facilitator after opening the investigation. Prairie View A&M officials and coaches declined to comment. Wallace and his parents did not return numerous phone, email and social media messages.” Id.
8. See, e.g. Kenny Jacoby, College athletes more likely to be disciplined for sex assault, USA TODAY NETWORK Updated 12:10 p.m. EST Dec. 16, 2019, available at: https://www.azcentral.com/in-depth/news/investigations/2019/12/12/ncaa-athletes-more-likely-disciplined-sex-assault/4379153002/
9. “Over the past year, the USA TODAY Network tried to collect these disciplinary records from 226 Division I public schools across the country. But only 35 complied…. Two statisticians the USA TODAY Network consulted about its study methods, William Huber and William Fairley of Analysis & Inference Inc., cautioned that the 35 compliant universities could be subject to selection bias. For example, it is possible they elected to provide records because they believed the public should know about problems with athletes on their campuses. Or, the statisticians said, perhaps they provided records because they believed they had nothing to hide — whereas schools that didn’t provide records could be covering up even bigger problems within their athletic departments.” Id.
10. John Doe v. Purdue University, No. 17-3565, (7th Cir. June 28, 2019) available at: https://law.justia.com/cases/federal/appellate-courts/ca7/17-3565/17-3565-2019-06-28.html
12. Note 9 supra.
13. This pain unquestionably leads men, who fail to properly respond to the sexual misconduct process, to sue their schools for violation of Title IX. See, e.g., https://www.studentmisconduct.com/news/jauregui-law-office-quora-answer-to-why-is-it-that-men-sue-their-school-under-title-ix-more-often-than-women
14. Note 9 supra.