Mimesis Law
19 September 2019

Baylor’s Board Of Regents Blows Title IX Report

June 6, 2016 (Mimesis Law) — Baylor University reacted swiftly following football player Sam Ukwuachu’s sexual assault conviction.  Its reaction included creating a new athletics director position to oversee student behavior and retaining outside legal counsel to investigate the school’s “compliance” with Title IX’s purported sexual assault “guidelines.” The law firm’s report isn’t public, but the school’s Board of Regents released a report condemning Baylor’s “wholly inadequate” adherence to OCR’s “Dear Colleague” guidelines.

The report makes it clear Baylor’s remaining Regents care more about federal funding than students, and are clueless on actual sexual assault law.

Baylor failed to effectively implement Title IX in the wake of the U.S. Department of Education’s Office for Civil Rights (OCR) April 4, 2011 “Dear Colleague Letter,” the passage of the Violence Against Women Reauthorization Act of 2013 (VAWA), and related authority and guidance. While individual administrators identified emerging and evolving Title IX and VAWA requirements, the University as a whole failed to prioritize Title IX implementation. 

A violation of Title IX carries with it a loss of federal funding, and would force Baylor to rethink its absurd tuition prices. Baylor rushed to ensure compliance with Catherine Lhamon’s “Dear Colleague” letter.  One consultation with competent legal counsel could have prevented this nonsense.  Baylor opted instead to spend prized alumni donations on “effective implementation and compliance.” This rush to compliance was a poor choice, as explained by Fault Lines Managing Editor Scott Greenfield.

OCR is authorized to administer Title IX, a law duly enacted by Congress.  It is a finger of the Department of Education, an arm of the executive branch, whose role is to administer laws. It cannot write laws. It cannot create laws. And while it has the power to regulate laws duly enacted, OCR’s grand vision has never been subject to the regulatory process.  It simply appeared in the Dear Colleague letter, and its follow-up letters, created out of an idea by the office-holders that this is what they want the law to be.

There is no legal authority that gives rise to a college or university establishing an adjudication procedure for criminal conduct separate and apart from the criminal justice system.  That OCR says so, upon pain of denying federal funding, without having employed the regulatory procedures needed to obtain the authority, seems to have flown over everyone’s head.

It flew over everyone’s head because the first footnote in the 2011 “Dear Colleague” letter* said OCR determined it a “significant guidance document,” according to the Office of Management and Budget.  It was Lhamon’s way of justifying her newly created “law” by saying, “we checked with the right people, and this is what you should do, so get to it or you lose money.  Baylor, according to the Board of Regents, didn’t bow and scrape at OCR’s feet quickly enough, despite former Chancellor Ken Starr creating a Title IX committee in 2011.

“Promptly upon the campus beginning in 2011, I established this committee,” Starr said. “It was a student-dominated committee with a lot of staff representation. I personally had conversations with Michael Wright, then president of the student body…we had sessions about campus safety generally, which included but was not limited to safety with respect to interpersonal violence. That task force…met regularly.”

Starr said the task force later “ripened into the creation of a committee on campus safety that included a Title IX set of issues (involving sexual assault), so I believe…that the administration was working all along, including designating a Title IX coordinator, early on. I had that designation given to a senior officer.”

None of the Board of Regents’ nonsensical ramblings reflect that Ken Starr, someone with the distinction of serving as U.S. Solicitor General and as a federal judge, might have read the “Dear Colleague” letter, realized it wasn’t law, and still went the extra step to make sure Baylor’s students were insulated from sexual assault.  The absence of bizarre programs like a “proactive compliance function” wasn’t good enough for Baylor, which needed to protect its reputation as a safe learning environment.  The Regents, and their need to keep funds in order to maintain compliance with a non-existent law, reflects the “damned if you do, damned if you don’t” mindset in academic circles, as Robby Soave muses over at Reason.

The more the activists—including those in the federal Office for Civil Rights, which ensures Title IX compliance—get their way, the more one-sided these campus rape investigations become… But this strategy has consequences of its own, and we are seeing them unfold before our very eyes. Accused students who were disciplined under standards of relaxed fairness are now suing the institutions that deprived them of due process, and they are winning.

This puts universities in a difficult position…complying with Title IX is itself quite costly: universities have to hire scores of coordinators and investigators that grow the administration and drain financial resources. For many colleges, sexual assault is a lose/lose/lose/lose issue.

There’s a fix to Baylor’s woes, as well as the similar grievances of universities facing the same problems.  The Secretary of Education needs to get rid of Catherine Lhamon for her work in creating this debacle, retract the “Dear Colleague” letters that rewrote Title IX to suit her (and her predecessor’s) whims, and specifically limit investigations of sexual assault to law enforcement.  As Soave notes, this isn’t the “easy fix,” but it’s the right one.

This is one of those cases where the easy thing isn’t the right thing. The long-term public interest is better served by investing actual cops and courts with the power to police rape. If reforms are needed, those reforms should be targeted at the institution that can do the most good, and that institution isn’t higher education.

Baylor’s Board of Regents doesn’t get it, and one suspects they never will, since that federal money means more than compliance with actual laws.  It will only cost them more time and money, but one must keep up appearances in academia when it comes to “rape culture.” What remains a mystery is that Baylor had as its president one of the premier legal minds in the nation, and yet ignored Kenneth Starr lest it risk losing a dime to Lhamon’s agenda.

*The 2011 “Dear Colleague” letter was signed by Lhamon’s predecessor, Russlynn Ali.

5 Comments on this post.

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  • Jason Truitt
    6 June 2016 at 11:27 am - Reply

    I want to begin here by saying that although I am a Baylor grad (underground and law school), I have been calling for the firing of Ken Starr and Art Briles for over a year now. And I’m not alone among Baylor grads. But I have several issues with your article.

    “The report makes it clear Baylor’s remaining Regents care more about federal funding than students, and are clueless on actual sexual assault law.”

    1. They didn’t release the report. They released the summary, or findings, of the investigation. A full report has not been reduced to writing.
    2. That being said, the findings make it clear that they want to hold the right people accountable. They fired a president that is a white Republican’s wet dream (in case you don’t know who Baylor alumni are, they are overwhelmingly white Republicans), and a coach that has dug them out of the basement in record time. There was significant debate on whether or not to take these steps, but they did it. I am not sure how you infer that they care more about funding than the students (the regents, anyway, not those involved in the scandal), while at the same time they of course have to be concerned with funding.

    “Baylor failed to effectively implement Title IX… the University as a whole failed to prioritize Title IX implementation.”

    This is entirely accurate, and indefensible. [Edit: After reading your defense of Starr, how you can make this statement and still defend the president of the university found to have failed so completely is beyond me. It says a great deal about you, and your slant in writing this post.]

    “A violation of Title IX carries with it a loss of federal funding, and would force Baylor to rethink its absurd tuition prices.”

    They’re still the cheapest major private school around, but whatever.

    “Baylor rushed to ensure compliance with Catherine Lhamon’s “Dear Colleague” letter. One consultation with competent legal counsel could have prevented this nonsense.”

    A rush to comply with what a regulatory agency considers best practices is nonsense? What if they had not complied? Would you be excoriating them for not complying?

    And your attitude demonstrates perfectly the difference between a legal blog and the real world. Baylor did not have to comply, but because it operates in the real world with real people and real liabilities, it absolutely should have. And should have much sooner.

    “That OCR says so, upon pain of denying federal funding, without having employed the regulatory procedures needed to obtain the authority, seems to have flown over everyone’s head.”

    Or maybe not. Either way, this is an enormous assumption on your part. In some instance, compliance is cheaper than fighting because you will have to spend some funds on some level of compliance anyway, so adding a little more to that doesn’t cost as much as litigating against one of the largest agencies in the country. Perhaps the smart move is to comply with a letter detailing best practices because they are, or may be, best practices. And in the event some school loses funding for failure to comply, sure, they’d have a great lawsuit. But that’s not the issue here.

    “None of the Board of Regents’ nonsensical ramblings…”

    What ramblings? Other than their statement regarding the PH findings, you’ve only quoted Starr here.

    “reflect that Ken Starr, someone with the distinction of serving as U.S. Solicitor General and as a federal judge, might have read the “Dear Colleague” letter, realized it wasn’t law, and still went the extra step to make sure Baylor’s students were insulated from sexual assault.”

    Ahhhhh, now it makes sense. You’re a Ken Starr apologist. Cute.

    “The Regents, and their need to keep funds in order to maintain compliance with a non-existent law, reflects the “damned if you do, damned if you don’t” mindset in academic circles, as Robby Soave muses over at Reason.”

    Well, yeah, and that’s the same thing they’re getting damned for–by you for doing it, by others (probably including you) had they not.

    “The more the activists—including those in the federal Office for Civil Rights, which ensures Title IX compliance—get their way, the more one-sided these campus rape investigations become…”

    And here we go–this harkens back to Greenfield’s several rants on false accusations in campus rapes. How heavily did he edit this post for you?

    While I agree that there are several issues related to campus rapes, false accusations being one of them, a lack of due process being another, that argument has no place here. Baylor’s failures, some of which are bolstered by internal Title IX coordinators actively dissuading victims from speaking out, coaches recruiting players with a history of violence, coaches meeting with victims in person to dissuade them from lodging complaints, and investigations so shoddy that not a single witness was contacted, are wholly different than Greenfield tilting at windmills about false accusations. Did false accusations happen at Baylor? I don’t know. But we have two convictions so far that say they didn’t, and from what I’m hearing a video of a gang rape that would corroborate another complaining witness’ accusations.

    “But this strategy has consequences of its own, and we are seeing them unfold before our very eyes. Accused students who were disciplined under standards of relaxed fairness are now suing the institutions that deprived them of due process, and they are winning.”

    Oh, do tell. While this may have happened, it has nothing to do with Baylor’s current issues.

    “This puts universities in a difficult position…complying with Title IX is itself quite costly: universities have to hire scores of coordinators and investigators that grow the administration and drain financial resources. For many colleges, sexual assault is a lose/lose/lose/lose issue.”

    And yet you are griping about Baylor, which is faced with this situation?

    “There’s a fix to Baylor’s woes, as well as the similar grievances of universities facing the same problems. The Secretary of Education needs to get rid of Catherine Lhamon for her work in creating this debacle, retract the “Dear Colleague” letters that rewrote Title IX to suit her (and her predecessor’s) whims, and specifically limit investigations of sexual assault to law enforcement. As Soave notes, this isn’t the “easy fix,” but it’s the right one.”

    This may be a thing for universities nationwide, but it damn sure doesn’t have a thing to do with Baylor today. Baylor had real and serious failures. To say that if the regulatory agency was more lax it would “fix Baylor’s woes” shows a fundamental misunderstanding of what has happened at Baylor. It is pure ignorance.

    “The long-term public interest is better served by investing actual cops and courts with the power to police rape.”

    Like Waco PD, which worked with coaches to conceal sexual assaults? Please, tell me more about this solution of yours.

    “Baylor’s Board of Regents doesn’t get it,”

    I suspect we know who the one is that just doesn’t get it here. The regents are trying to make things right based on real failures. You are trying to take a real situation and parlay it into a diatribe against the way campus rapes are investigated, generally. Or at least Greenfield is, and he’s using you for a mouthpiece.

    “What remains a mystery is that Baylor had as its president one of the premier legal minds in the nation, and yet ignored Kenneth Starr lest it risk losing a dime to Lhamon’s agenda.”

    Yep. Starr apologist. This great legal mind didn’t talk to the star witness in his most famous prosecution, and embarrassingly let a deponent–one who was caught red handed in a lie, who Starr could not close the deal on–run circles around him in a deposition and prosecution. I don’t know what it takes to be a great legal mind in your circles, but I’m hoping future Baylor lawyers don’t learn how to litigate from a lawyer like Starr.

    • CLS
      6 June 2016 at 7:09 pm - Reply

      So Baylor graduate gets so triggered by my post they devote an immense amount of time to telling me the following:
      1. I’m Wrong On The Internet
      2. I’m apparently a Starr Apologist, even though I hold no value judgments against the man
      3. Baylor Grad hates white republicans
      4. Baylor Law Grad can’t be bothered to read.
      5. Baylor Law grad can’t be bothered to actually look at the law or understand it.
      6. Baylor grad cares more about defending something that isn’t law and vilifying police than actually understanding law.

      Maybe you should take one of Ken Starr’s law classes again.

      • Wrongway
        7 June 2016 at 3:14 am - Reply

        “Mic Drop!!”

        “BOOM!!”

      • Jason Truitt
        7 June 2016 at 1:47 pm - Reply

        Trust me, your post is so riddled with mistakes that it didn’t take an “immense” amount of time to quote (and refute) pretty much every sentence, but otherwise:

        1. You’re the one that put this bullshit piece on the internet. Where else am I going to tell you how wrong you are?

        2. Uhh, you basically gave him an internet handy. I’m surprised you took your head out of his lap long enough to write this piece.

        3. I said that’s the majority of BU grads, but you keep racking up those assumptions. If you don’t think I’m right, it can only be (again) because you have no idea whet you’re talking about when it comes to Baylor.

        4. I read every word. It’s just that I know what this is all about, and since you don’t, you somehow think I haven’t read it. That’s your ignorance, not mine.

        5. Sigh. Again, I understand the law. But that’s the difference between the real-world implications of what Baylor is and should be doing, vs. some guy on the internet going on about how Baylor should not legally have to do it. That was your point, right? I mean, besides being Greenfield’s mouthpiece about false rape accusations (did he write your rebuttal for you, too?), what you think is that Baylor shouldn’t have to follow the “dear colleague letter”, whereas I think it’s good practice for them to do so. This is the last time I’ll explain it to you–I can’t help you understand it.

        6. If by vilifying, you mean making reference to the known facts of the WPD cover ups, when you think the police would do the right thing, then yes. Waco PD, who you think should be relied upon, has in fact helped bury some of these assaults. Again, this shows your ignorance of the facts, not my ignorance of the law.

        I should know better than to respond to people who are so uneducated on the facts that they cannot get a single point right as it applies to the current controversy, and in general I shouldn’t take insults from a guy who practices and lives in a double wide seriously, but I guess I’m a hopeless romantic. I think you can take the white trash out of the coal mining town.

        Please don’t prove me wrong.

  • WSU’S Title IX Compliance Violates The Law
    13 June 2016 at 9:14 am - Reply

    […] Fault Lines discussed the ineptitude of Baylor University’s Board of Regents in the wake of a Title IX “compliance” review.  The response to allegedly “shocking” noncompliance with a law that isn’t a law […]