Mimesis Law
23 October 2017

Minnesota College Football Players Silenced For Title IX Protest

December 20, 2016 (Fault Lines) — The amorphous blob of a sexual assault law that isn’t, often referred to here as “Title IX,” clashed last week with another major powerhouse on college campuses. College athletics bring in alumni donations and money arguably as quickly as federal funding, buttressed by “compliance” with the Department of Education’s Office of Civil Rights’ whims.

That’s why the University of Minnesota’s football team announcing a boycott of all football activities, including a bowl game slated for a week from now, over the suspensions of ten players following a Title IX investigation gained national attention.

The boycott ended almost as quickly as it started, with senior Drew Wolitarsky reading from a two-page typed statement affirming the team’s commitment to seeing due process for any student accused of sexual assault. Wolitarsky’s statement also expressed concern for the young woman at the center of the incident, and condemned sexual violence on campus. While it’s back to business for the Golden Gophers, the questionable circumstances surrounding the boycott’s end, the utter disregard for the lives of ten young black men, and what could be viewed as a University decision to value money and prestige over the tarnished reputations of its student body, remain. Lingering questions deserving answers.

A young woman attending the University of Minnesota downed approximately four to five shots of “100 proof vodka” the night of the team’s season opener. She attended several parties after the game, and engaged in sexual relations with what she later felt were ten men. The young lady would admit she was “very drunk to a level she didn’t reach often,” but not “stumbling or falling down drunk.” Soon afterward, she filed a complaint with the University’s Title IX office and called her mother to ask whether she should file a police report.

Mother responded in the affirmative, and the Minneapolis Police Department quickly initiated an investigation which cleared six students of wrongdoing. According to the cops, the accused might have been intoxicated, but nothing from the obtained evidence suggests she did anything against her will. The people paid to investigate crimes and make recommendations to district attorneys saw no sexual assault.

The University’s Equal Opportunity and Affirmative Action (EOAA) response team found differently. Their eighty-page report reads like a certain Rolling Stone story later proven a hoax. It recommended expulsion for some of the ten student-athletes, but the eventual punishment was suspensions for each of varying degrees.

According to Wolitarsky, one of the seniors organizing the boycott, the rest of the team wasn’t happy that neither University President Eric Kaler nor any administrator would tell the team why the players were suspended. Kaler simply deferred to federal privacy laws for his silence.

Someone at the University wasn’t keen on staying silent about the matter. The EOAA report is to be kept confidential, according to the University’s own policies for investigating sexual misconduct. It’s considered “retaliatory conduct” to share “information about a complaint or investigation with other University members who do not have a need to know.” Yet, we know every detail of the EOAA report involving the ten Golden Gopher student-athletes because someone leaked it to a Minneapolis/Saint Paul television station. According to the players, reading the report “changed the narrative” of the boycott and called for an end.

Exactly what “narrative” changed is unclear. The students organizing the boycott and their coach took a stand against the lives of ten young black men being tarnished forever by calling national attention to a system they believed deprived their teammates of appropriate due process. Every member of the Golden Gophers team went to bat for their teammates, vocally opposing a system they thought best left to the courts. None advocated or condoned sexual assault on their campus or any other. Yet their tone quickly changed once someone on campus with access to the EOAA report leaked it to the press.

The use of a leaked report, by someone at a state school that receives federal funds, is a questionable tactic to silence speech on a college campus.  It’s a foul end-run around the students’ First Amendment rights to peaceably assemble and speak out on issues with which they disagree. It smells of “intimidation” against the Golden Gophers, which is also part of the “retaliatory conduct” the school’s own Title IX policies prohibit. It’s a black eye to the University of Minnesota’s own reputation and integrity. The one remaining issue is motive for such reprehensible conduct, but that’s an easy question to answer. It’s all about the money.

Schools with teams meeting the requirements for a post-season college bowl game receive ridiculous sums for their participation. Minnesota is part of the Big Ten, a conference with a contractual obligation to participate in the Holiday Bowl. Loss of the game, or controversy surrounding the participants, could harm the conference’s billion dollar television deal. And no one wants to make this year’s sponsors unhappy. Better to silence a few unhappy players and subject them to pressure instead of stick to principles and listen to those who demand full and fair hearings for students accused of sexual assault in campus disciplinary hearings.

More details may unfold well after December 27th about the suspensions of the ten Minnesota football players. It doesn’t change the fact that ten young black men are now labeled as sexual predators at the University of Minnesota. It doesn’t change the fact their teammates decided to draw national attention to a process that gave ten young black men that label. And it doesn’t change the fact that someone at the University of Minnesota violated the school’s policies in what could arguably be seen as a decision to value money over student lives.

The only question left is what price tag someone at the University of Minnesota places on their own integrity for leaking that report.

UPDATE: Lee Hutton, attorney for the ten players, announced that he planned to file “multiple lawsuits” in federal court this week seeking immediate re-instatement of the ten suspended players. Here’s hoping the Eighth Circuit doesn’t follow the Sixth’s lead.

11 Comments on this post.

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  • Mark W. Bennett
    20 December 2016 at 9:25 am - Reply

    “The use of a leaked report, by someone at a state school that receives federal funds, is a questionable tactic to silence speech on a college campus.”

    Not sure I read any facts that would support or even rise to an inference of the above statement as to the motivation for the leak. Not sure I see the logic of a leak suppressing First Amendment speech. Perhaps a more detailed explanation by the author of the post would be illuminating.

    • shg
      20 December 2016 at 9:48 am - Reply

      A report that was in the exclusive possession of school admins was unlawfully disclosed to the team, following their decision to protest in support of their teammates, that somehow turned the team around and got them to end their protest and play in the bowl game. While it’s possible that the disclosure came from some other source, the inference that the school unlawfully disclosed it and used it to compel the team to silence their support of the ten students seems fairly clear.

      • Mark W. Bennett
        20 December 2016 at 2:28 pm - Reply

        I am with you that the inference is the U of M likely disclosed it. And without knowing accept the assertion that the disclosure was illegal. That the intent was to silence the protest and that this is “fairly clear” escapes me. Sorry I am dense on this one but how did the disclosure allegedly silence the protest? The team members wanted answers and they got some of them. That they may not like the answers they got or disagree with them hardly silences them. I have not experienced overindulged division I college football athletes to be silenced although sometimes that would be a nice thought.

        • shg
          20 December 2016 at 3:07 pm - Reply

          The school had a clear motive to end the team’s protest, particularly its refusal to play the bowl game without their teammates. The release of the Title IX findings (which both conflicted with the conclusion of the police and are notorious for the lack of due process, facile definitional vagaries, one-sided investigation and “believe the victim no matter what” bias) put the team in an awkward, untenable and embarrassing position of appearing to back rapists.

          Perhaps what makes this more apparent to me is the familiarity with Title IX investigations and findings, and the near impossibility on campus of holding a defensible position in the face of the dubious conclusions. It’s not that the school sought to persuade the students to play football, but that they may have used a confidential document (both by the school’s own rules and FERPA) to accomplish what they could not accomplish otherwise.

          Update: Prof. K.C. Johnson had this to say about the connection:

          The Minnesota case includes one element absent in the Yale matter. Local reports suggest that the players’ unity was in part eroded by the release of the university investigative report. Even construing the incident in the light most favorable to the accused players, this lengthy document revealed an ugly, troubling episode in which the accused players were almost caricatures of unfeeling misogynists. Little wonder the other players then folded.

    • CLS
      20 December 2016 at 11:53 am - Reply

      Judge:

      The school’s Title IX policies prohibit “retaliatory conduct,” which includes sharing the information regarding a complaint or information concerning an investigation with other members of the University who don’t “need to know.” The players started the boycott because six of the ten suspended had previously been cleared of any wrongdoing. The Golden Gophers’ boycott started because the team wanted answers as to why their colleagues got suspended. They weren’t getting any. This is Thursday of last week.

      By Friday a Minneapolis/Saint Paul television station managed to get a copy of the EOAA report. They never should have obtained that document. When the EOAA report went public, and the players read it, they went from “Our friends and teammates have their names tarnished without a semblance of a fair hearing” to “We don’t condone sexual violence in any way.”

      Someone involved with the University’s Title IX investigation, who had a copy of that EOAA report, leaked it to the press in violation of the school’s own policies. None of the players involved had any incentive to do so, and the young woman certainly doesn’t appear as if she’d want her private details publicly aired. That leaves one culprit. Someone at the university leaked the report.

      If the Golden Gophers didn’t participate in the Holiday Bowl, the eyes would be off the game and on the school for the way they handled the suspensions. It would have been the first time in fifty years a college team backed out of a bowl game in protest. It also would have cost the University of Minnesota at least $300,000 by my research for not participating. Follow the money and the only person that makes sense is a school administrator leaking the report to get the team back in line.

      If an administrator at a state school receiving federal funds unlawfully discloses a report to the public in an attempt to suppress student speech through coercion, I respectfully submit that’s a big time First Amendment issue.

  • william the stout
    20 December 2016 at 10:51 am - Reply

    There are three levels of judgement here:

    1. Do the police and prosecutors believe that they can convict the accused of a crime beyond a reasonable doubt?
    2. Have the accused violated the code of conduct of UM to the extent that they deserve to be punished by suspension or expulsion?
    3. Have the accused violated the code of conduct of the athletic department to the extent that they deserve the privilege (which isn’t a right) of participating in the next football game?

    So far #1 and #3 have been answered “no” and “yes” respectively. Not sure I see where anybody’s done anything wrong in reaching those conclusions.

    As to #2, y’all are absolutely correct in saying that there is plenty of evidence to worry that due process won’t be afforded the players in answering that question. That’s on the one hand. On the other, there are plenty of examples in which school administrators, campus police, and local college town police have bent over backwards to protect players from the consequences of appalling and possibly criminal behavior (reference Florida St, Oregon, Tennessee, Florida, and Baylor among others). Because money. So there are competing outside influences here and I wouldn’t hold my breath waiting for a resolution that’s going to please everybody.

    • CLS
      20 December 2016 at 11:55 am - Reply

      While your attempt at passing judgment on the ten young men whose lives are now labeled “sexual predators” is laudable, what in the fresh hell does this comment have to do with anything concerning the point of this post?

      • william the stout
        20 December 2016 at 1:45 pm - Reply

        Please point out the specific language in my post where I “passed judgement” on anybody.

        And you’re assuming as to who leaked the report. The first page of the report as posted by the Minneapolis TV station is a redacted transmittal letter to one of the accused formally informing him that he’s been accused and attaching the report as the evidence against him. So the report wasn’t in the sole possession of the university. All 10 of the accused had access to it, as well as an unknown number of representatives, friends, and family members of the accused. Presumably, the accuser got a copy as well, and who knows how many family members and attorneys she may have shown it to. So there were more than 10 parties who had copies of the report – who knows who leaked it?

  • TheHawk296
    21 December 2016 at 1:42 pm - Reply

    “Simplicity Agent Starling”……

    Are we to believe that one lone woman was sexually assaulted by ten presumably large and powerful men (given that they were after all football players) and there was not enough evidence for the cops and local DA to make a case?????

    REEEEEEAAAAAAHHHHHHHLLLLLLY?????????????

    This reads like the much discredited Rolling Stone story, or the Duke University Lacrosse team fiasco, and the school officials fell right into it, and it appears they’ve learned nothing in an “institution of higher learning” Anyone who’s been to any school from elementary through graduate schools knows that school “tribunals” are kangaroo courts on par with the scene from the movie Animal House. “Guilty until proven innocent” and one can never provide enough proof of their innocence in these forums. That is how the tribunals have worked and always will work – until the school is forced to pay out big $$$$$$$.

    Ten men, innocent in the eyes of the law (all black by the way) have now been tossed out of their college, lost their scholarships, and have had their names and pictures spread all over that national news media.

    I’m glad their fellow players stood up for them – and at great risk to themselves. Too bad those football players had to back down at the risk of loosing their own scholarships (which why student athletes need labor unions – a discussion for another time and place) and also why anyone, not just athletes needs competent legal representation in these school tribunals.

    Let’s hope these ten men, who are innocent in the eyes of law sue the school and their officials and win BIG BIG BIG, and as part of their settlement, get reinstated with fully expunged records – Like they’d want to go back there anyway.

    Final note – Someone needs to offer Wolitarsly a really good job when he graduates. – The man is quite articulate.

  • Minnesota Football: Is It Belief Or Evidence? | Simple Justice
    22 December 2016 at 9:55 pm - Reply

    […] The reaction to ten of their University of Minnesota teammates being suspended was first to protest and then, after disclosure of the confidential Title IX report to a local television station, to not. At immediate stake was a bowl game. […]

  • Chris_Halkides
    26 December 2016 at 12:02 pm - Reply

    “According to sources, some players were convinced the university had planted the notion that the report changed minds, to make it look as if their support had waned for the 10 suspended teammates. A since-deleted tweet from wide receiver Rashad Still said, ‘Can’t trust our own administration [shaking my head]. Why do this to another human being?'” From a Star Tribune article “Gophers are back to Football”