The reports slowly piled up yesterday, all bearing the same news—university president Ken Starr was out at Baylor. The news wasn’t shocking and spread quickly because it fit the moment, following on months of reports that portrayed Baylor leaders as ambivalent to reports of sexual assault, especially reports involving football players. When reporters reached out for confirmation, Baylor responded with this:
The Baylor Board of Regents continues its work to review the findings of the Pepper Hamilton investigation and we anticipate further communication will come after the Board completes its deliberations. We will not respond to rumors, speculation or reports based on unnamed sources, but when official news is available, the University will provide it. We expect an announcement by June 3.
The key phrase here is “when official news is available.” That’s a public-relations way of saying that nothing is news until Baylor says it is—a nice way to avoid the entire concept of a free and independent press or of having any responsibility to the public. It’s shocking, and it fits with Baylor’s perpetual silence on the issues. There are myriad moral reasons Baylor should speak but, when it comes to silence, the law is on their side.
The perks of being private
Baylor benefits from being a private university. Under state law, reporters could get copies of emails, reports, and maybe even investigative records if this happened at, say, the University of Texas, Texas A&M, Texas Tech, or another public university. By dint of being private, though, Baylor doesn’t have to release or confirm anything it doesn’t want to. (That the distinctions between private and public are rather thin—Baylor performs many of the same functions as its taxpayer-funded counterparts, and in fact takes plenty of public money—is worth noting but doesn’t directly bear here.) Baylor still could release information and documents, out of respect for the public or as a show of transparency, but clearly has other concerns at the forefront.
Baylor also got a nice boost from the Texas attorney general’s office (helmed by a Baylor grad) when it agreed that campus police could withhold five police reports about possible sexual assault on campus from ESPN. The logic used by the AG’s office was that because ESPN knew the names of the victims, the only way to preserve the common-law privacy of the victims was to withhold everything. When the Associated Press requested the reports, which it said detailed “sexual assaults committed by two former football players against students,” they too were denied and given the exact same reason as ESPN.
But what about Title IX? Can’t the federal government pry open closed doors? The 1972 law barring discrimination based on sex at “any education program or activity receiving federal financial assistance” has been behind the recent calls for all universities, both public and private—because they all receive federal money—to prevent sexual assault on campus and investigate reports when they are received. Under Title IX, a woman who believes her report was intentionally ignored or downplayed can file a civil suit against Baylor. One already has, and another settled with the university before filing. Perhaps some details will come to light because of the lawsuit, but there’s no guarantee.
The federal government also can investigate Baylor but, as of the most recently available list, the U.S. Department of Education doesn’t include them as an institution involved in any open investigations. The Office of Civil Rights doesn’t confirm whether or not it receives complaints, and so won’t say whether or not one has been filed against Baylor. The OCR can initiate an investigation proactively—this is known as a “compliance review”—or do a direct investigation in limited circumstances described in its case processing manual.
In appropriate circumstances, OCR may conduct a directed investigation when a report or other information indicates a possible failure to comply with the regulations and laws enforced by OCR, the matter warrants immediate attention and the compliance concern is not otherwise being addressed through OCR’s complaint, compliance review or technical assistance activities.
This strikes me as exactly the situation at Baylor. The OCR, apparently, feels differently.
Accepting federal dollars means Baylor must follow federal mandates, like Title IX, but it doesn’t mean the federal Freedom Of Information Act applies. FOIA only applies to “agencies of the federal government.” It excludes Congress, the judiciary, and, among many other institutions, Baylor. Don’t expect the Supreme Court to expand it; just three years ago the court noted in a public records case that “the Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws.”
Perhaps the NCAA can let some sunshine in? Many of the worst allegations involve football players, after all, and there are legitimate questions about how much football coach Art Briles knew about past accusations of violence against players on his team. Looking to the NCAA as an instrument of justice, though, would require believing that the organization, which exists mainly as a workers’ compensation avoidance mechanism, is good for anything beyond banning things like props in softball dugouts.
“A history of resisting Title IX”
Baylor can pretty much do whatever it wants with the final report from the lawyers it hired in September to investigate its handling of sexual-assault complaints. It can release the entire report. It can release only the cover page. It can say we aren’t releasing anything. It can release a picture of an alien drawn by a five year old. It can release the middle-finger emoji, which might be the most honest response of all.
This flies in the face of what Baylor is: A large, influential Waco institution that provides what sure feels like a public service and certainly does receive public money. It also fits within Baylor’s history, especially with Title IX. Baylor’s problems with Title IX go back decades, as laid out recently by the Dallas Morning News, and the federal government knows this:
Baylor has had a history of resisting Title IX, the 1972 law which barred sex discrimination on campuses that receive federal money. In 1974, when Baylor women couldn’t wear pants on campus, the school’s president called the law “the grossest grab for power in federal history.”
In the 1990s and again in 2009, the federal government cited Baylor for not providing enough athletic opportunities for women. Baylor vowed to improve, but is still out of compliance as the government continues to monitor its progress.
All that’s known is that the most powerful person involved in all this, the head football coach, has managed to stay silent—and largely unscathed. Only a fool would believe Starr is more powerful than Briles, and nothing speaks to that more than their salaries. Starr’s compensation in late 2013, per the Houston Chronicle, was a little over $706,000. Briles’s pay is $4.2 million. Starr’s head, if indeed it has rolled, will be a nice trophy on a stick, something the university’s Board of Regents will wave around to keep the lawsuits away. But would their doing so mean anything has changed?
Unbelievably, even if he is gone as president, Starr might not be gone from Baylor. The first source to report Starr’s firing, Horns Digest, also reported that Starr might stay on at Baylor with the university’s law school. His reported replacement would be Reagan Ramsower, Baylor’s senior vice president of operations and chief financial officer. Horns Digest said that Ramsower’s duties included overseeing campus law enforcement, the same agency that refused to release those five police reports.
Change is hard. Change is messy. Change always happens slower than everyone likes. But the one constant through the months of scandalous stories out of Baylor has been Baylor staying silent. Until that silence ends, whatever public executions Baylor puts on don’t matter. You can change the names, but it doesn’t mean the results won’t stay the same.