How Should Colleges Handle Athletes Previously Accused Of Sexual Assault?

College coaches and athletic departments typically enjoy tremendous leeway when it comes to recruiting athletes. To wit: football coaches know who the best football players are, so they are in charge of offering football scholarships.

However, when those same recruits pose a potential risk to other students on campus, should athletic administrators be given the same deference?

That's the question facing schools following a string of recent cases in which sports programs recruited athletes previously accused of sexual assault or domestic violence—cases that have produced additional accusations, lawsuits, and costly legal settlements, leading many conferences and universities to pass rules taking power away from sports-focused decision-makers and requiring better vetting of recruits.

Whether those rules are enough remains to be seen.

A recent Title IX lawsuit brought against Baylor University by former student Jasmin Hernandez following a series of campus sexual assaults illustrates the core problem. Hernandez claims that Baylor football coach Art Briles was aware of a previous incident in which former Bears football player Tevin Elliott was cited for sexually assaulting a woman—yet chose to recruit him Elliott anyway, without any proof of rehabilitation.

In doing so, Hernandez and her attorney claim that Briles and Baylor put students at risk by bringing a predator to campus. The Office of Civil Rights states that under Title IX, the university and its employees must be proactive in ensuring they are not creating a "hostile environment" for students.

Last August, the University of Oregon settled a similar suit for $800,000 with a victim who described in excruciating detail an assault by three basketball players, all of whom were kicked off campus after a Title IX review. Part of her suit alleged that the university made the campus environment unsafe, given that Oregon allowed one player involved, Brandon Austin, to transfer in despite being accused of an assault at his former school, Providence.

In response, Oregon now preemptively requests the FERPA documents of any potential transfer, and the university itself must first clear athletes before a coach can offer them a roster spot. The Pac-12 has followed Oregon's lead, barring its members from bringing in athletes who have been convicted of misconduct at other schools. The Big 12, of which Baylor is a member, and the SEC created similar rules last year, following a case in which a player who had been convicted of domestic violence at Georgia was convicted of another assault at Alabama.

The goal? Reduce the odds of future incidents and lawsuits.

"It's not that you can never bring in someone who has been accused of sexual assault or has ever been convicted of for sexual assault," Title IX lawyer Tom Newkirk said. "What is irresponsible for a university is to not even consider it."

Therein lies the quandary: What, exactly, constitutes adequate and responsible consideration, and how should schools make final decisions about bringing in athletes whose past behavior might raise flags? The new rules are step in the right direction, but they won't stop all potential assaults. Nor will they fix all of the problems with the current system.

Fact is, those problems cannot be holistically addressed without the threat of severe sanctions from the NCAA, or the Office of Civil Rights—neither of which has ever publicly considered such an option.

The reason there needs to be some sort of oversight of recruiting, at least at the university level, is that coaches are inherently biased. They want to win. If a player is talented enough, a coach may be tempted to downplay or disregard a history of sexual assault allegations or discipline.

The new rules take some of this decision-making power out of coaches' hands. Under the Big 12's rule, for instance, "prospective student-athletes, including transfers, who have committed serious misconduct shall not be eligible for athletically related financial aid, practice, or competition."

This clause might have kept Baylor from offering Elliott a post due to his previous sexual assault citation, regardless of what Briles did or didn't know.

On the other hand, Oregon still would have been allowed to accept Austin's transfer under the Pac-12's new rule, because he was not found guilty of a code of conduct violation at Providence. For many of the same reasons the criminal justice system has a hard time investigating and prosecuting sexual assault, universities struggle to determine the validity of allegations, which in turn affects their evaluation of the risk a particular incoming athlete may or may not pose.

By making sure the university plays a role in determining whether a transfer student's record is satisfactory, Oregon is ahead of the curve. Still, it's unclear what the university would consider grounds for denial of admission based on FERPA findings. Austin had no proof of rehabilitation upon transferring into Oregon. Would that have been a red flag? Or would the lack of a conviction had made him an acceptable candidate?

An Oregon spokesman told VICE Sports those determinations are made on a "case-by-case" basis.

Case-by-case decisions could potentially depend on a lot of factors, including how cooperative the other school is in sending FERPA documents and how deep the investigation went. Those decisions also could also depend on whether an athlete has shown proof of rehabilitation. But that still leaves a lot of confusion and ambiguity.

Consider the case of former Oregon player Damyean Dotson, who was found guilty of sexual misconduct via a university hearing and is currently suing the school for his subsequent expulsion.

Dotson's suit argues that the school, in deciding to expel the players after public pressure, did not give him a fair hearing. "My objection to this process right now is the process," said Dotson's attorney, Alex Spiro. "My position isn't that the schools shouldn't have a conduct hearing."

Schools do not follow the legal system's guidelines for finding a student guilty of sexual misconduct. A 2011 Dear Colleague letter from the Assistant Secretary for Civil Rights requires simply a preponderance of evidence that an assault occurred in order to find a student guilty. And Title IX requires that campus is safe for all students. However, it has no guidelines for re-admittance after rehabilitation.

Dotson was allowed to transfer into Houston under the precondition of continued counselling. For schools in general, is that a risk worth taking? Continued counseling is thought to be effective in rehabilitating those accused of assault.

"The schools are in a different posture than a private entity like a professional team, and they do owe an enhanced duty to protect their community," Spiro said. "That said, I'm reluctant to draw lines because to me the types of student conduct that would be so alarming to rise to the level of un-forgiveability or rise to the level of unforgivable concern are truly rare in higher education."

Campus rape cannot be described as "rare," but determining what level of rehabilitation is acceptable—and which athletes, if any, deserve a second chance—is still up for debate. Newkirk has devoted his work to changing how people think about harboring rape culture on campus, but he also sees room for legitimate rehabilitation, as long as the person is willing to admit they need to be rehabilitated.

The process starts, he says, with accountability.

"You don't have to believe that these kids are predators," Newkirk told VICE when Houston brought in Dotson. "A lot of young men engage in behavior that is [inappropriate]. Sometimes they engage in that behavior because they believe that they have a right to do so. It can be a situation where they can learn from their mistakes."

For that to happen, schools need better guidelines for considering athletes who have been accused of misconduct. Newkirk offered a few suggestions:

● First and foremost, it is impossible for a coach to be unbiased in the decision to recruit any athlete, and thus, that coach should not be making the final decision in these cases.

● Schools should talk to alleged victims at prior schools, and if the athletes in question really believes in their innocence, they should be willing to talk about their cases openly, answering all tough questions, before schools accept their transfers.

● Alternatively—this would wholly depend on the severity of the misconduct—if athletes show remorse for a one-time mistake, the opportunity for a second chance could be contingent on accepting counseling.

The above rules aren't perfect, and they're still abstract—when Oregon says athletes are evaluated on a "case-by-case" basis, it isn't just an institutional dodge—but they would allow much more room for the Office of Civil Rights to determine whether a school did all it could to manage a known risk.

In the meantime, the current Wild West environment does little to deter schools from taking on known risks. An $800,000 settlement sounds a lot of money, but it's a drop in the bucket for Oregon, which brings in $196 million in athletics revenue per year. Cynically, one could argue it was still "worth it" for the school to bring in Dotson, Austin, and Dominic Artis, because those elevated the stature of the program while they were eligible and on the floor, providing a stepping stone to a No. 1 seed in the NCAA men's basketball tournament.

Due to its litany of Title IX issues, Baylor will likely end up paying out a fairly large settlement. But as is the case with Oregon, it's not unfair to wonder if big money losses that aren't actually all that big can successfully discourage questionable transfer decisions in the future.

"I don't see it happening," Newkirk said. "They have a lot of problems of sexual assaults with multiple incidents happening, and the schools just write a check."