LINCOLN — In 1995, when star Husker defensive lineman Christian Peter was sued by a former student who alleged he raped her twice, it was then-football coach Tom Osborne who decided Peter should remain on the field.
Peter, the coach said, had complied with a team-ordered counseling program and should stay on the team, even though he earlier had been sentenced to 18 months of probation for groping another woman in a Lincoln bar.
Many criticized the approach: a coach standing in judgment over one of his star athletes. Sports Illustrated published an article on the Peter case and other Huskers facing criminal trouble under the headline “Coach and Jury.”
As recently as seven years ago, when NU lineman Andy Christensen was charged with first-degree sexual assault, it was the football coach, then Bo Pelini, who ordered a suspension.
It was also the coach who reinstated Christensen to the team after a jury acquitted him.
Since at least 2011, the University of Nebraska-Lincoln, in reaction to a federal order to create a more impartial process, has relied on a small and little-known compliance office. Its job is to investigate claims of sexual assault, sexual harassment, stalking and domestic violence involving students and student-athletes, as well as staff and faculty.
The Office of Institutional Equity and Compliance has a team of four investigators. Its mandate is to rule on violations of Title IX, the federal act that not only requires gender equity in college sports but prohibits sexual discrimination and sexual abuse and assault.
The "Title IX office" has 60 days to investigate an allegation and issue findings. The findings, along with any disciplinary recommendation, are then sent to the athletic department.
The athletic department must comply with the recommendation, which can vary from dismissal to counseling to expulsion from school. But the four members of the department’s conduct committee can, if they feel it's necessary, enhance the punishment.
Members of the conduct committee are: Jo Potuto, a University of Nebraska law professor and the university’s faculty athletics representative; NU Athletic Director Shawn Eichorst; Senior Associate Athletic Director Steve Waterfield; and Pat Logsdon, the senior associate athletic director for women’s sports.
Husker coach Mike Riley still has the latitude to suspend a player, or kick him off the team, for violating team rules.
But when it comes to university punishment for a sex-related offense, that’s out of a coach’s control.
The new system, officials say, puts the job of investigating misconduct in the hands of those trained to investigate it and removes the coach from a potential conflict of interest in deciding whether a key athlete gets to stay on the field.
“It allows the coach to do what he’s trained to do and hired to do, which is to coach the team,” Potuto said.
After learning of an alleged sex assault reported a week ago at a home shared by Husker quarterback Tommy Armstrong and receiver Jordan Westerkamp, Riley said he was as curious as reporters as to what university officials, as well as criminal investigators, will find.
Riley made it clear that he had not delved into the specifics of what may have happened — something Osborne was criticized for doing 20 years ago — and was awaiting the decision of the university administration on the status of his players.
A new student-athlete conduct policy, adopted by the NU athletic department in January, makes it clear that a head coach does not make the decision on whether an athlete is suspended immediately or eventually for sexual misconduct.
The four-member conduct committee within the athletic department can issue an immediate suspension of a player while an investigation is pending by the equity and compliance office if the conduct committee determines that such action is in the best interest of the student athlete and/or the university. So can the equity and compliance office.
Susan Foster, a former labor law attorney who was hired in February to direct the compliance office, was emphatic when asked if she expected UNL’s current football coach to get involved.
“Mike Riley wouldn’t do that,” Foster said. “I believe in his integrity, and I believe he’s a firm believer in the process.”
The mechanism for investigating such complaints is, without a doubt, already engaged.
The NU athletic department is required, under its new student-athlete conduct policy, to notify the equity and compliance office of allegations of sexual misconduct. That office is required to investigate, though it cannot acknowledge the existence of a probe.
A week ago, a 20-year-old woman filed a report with Lincoln police that she had been sexually assaulted at the north Lincoln home where Armstrong and Westerkamp live. Armstrong said police interviewed him, Westerkamp and another Husker player, tight end Trey Foster, about the allegation.
No arrests have been made, and authorities have not publicly identified any suspects. It’s unclear who besides Armstrong, Westerkamp and Foster was at the house when the alleged assault occurred.
The university, due to student privacy laws, cannot publicly announce suspensions. All three players participated in practice Wednesday before the team took a break from workouts over the weekend; the team’s final regular-season game is Friday versus Iowa.
Armstrong told The World-Herald on Tuesday that he was “confused” by the allegation and that he understood that any sexual contact was consensual and that “everything was fine.”
Lincoln police have said that they will turn over their investigation, once it’s completed, to the Lancaster County attorney, who will determine whether any charges are filed. That process could take several weeks.
Susan Foster, of equity and compliance, said her office’s investigation must be completed within 60 days, unless there are extenuating circumstances.
So why are coaches no longer in the driver’s seat for such disciplinary matters?
Potuto, an authority on sports law who for several years was chairwoman of an NCAA Committee on Infractions, said Congress became concerned about the fairness and impartiality of investigations of sexual assaults by universities.
Cases involving football players have sparked much of the interest, including those involving Nebraska players during its championship seasons in the mid-1990s. The suspension and reinstatement of running back Lawrence Phillips after physically assaulting an ex-girlfriend put a spotlight on the NU program, as well as the handling of incidents involving players.
It prompted Kathy Redmond, who accused Peter of raping her as a college freshman at UNL, to form a group called the National Coalition Against Violent Athletes to counsel victims of sexual assault and abuse. She received $50,000 from UNL and an undisclosed amount from Peter to resolve her Title IX lawsuit, a civil suit, out of court.
The issue of sexual assault and athletes remains on the front burner. Two years ago, Florida State quarterback Jameis Winston won the Heisman Trophy — a week after a Florida prosecutor announced that he would not file charges in connection with an alleged sexual assault a year earlier because of “major issues” with the victim’s account.
Even before that, in 2011, the U.S. Department of Education and its Office of Civil Rights informed universities and colleges that to ensure an educational environment free of sexual discrimination and sexual violence, they should ensure impartial and thorough investigations of violations of Title IX.
Title IX is the 1972 federal law that prohibits discrimination on the basis of sex in any federally funded educational program or activity. It not only requires equity between women’s and men’s collegiate sports but also prohibits discrimination and harassment based on sex on college campuses, a prohibition that extends to sexual assault.
Sexual assault is a big issue on college campuses. While estimates vary widely, one survey this year concluded that one in five female undergraduate students at 27 prominent universities was a victim of sexual assault and misconduct.
UNL, like many schools, responded to the 2011 directive by establishing a Title IX compliance coordinator and creating a process through which to investigate complaints.
Potuto said that having a university office rather than a coach or athletic department do such investigations not only sets up a fair and impartial process for both the victim and the accused but has benefits for coaches, too.
“It insulates the coach from claims that he didn’t do an adequate investigation, or favored a key player,” she said. “That’s a decided advantage.”
Osborne, when he was coach, was harshly criticized for reinstating Phillips and launching his own investigations of incidents involving other players. Critics said he let Phillips return so the Huskers could win a national championship, while the coach said it was his way of helping Phillips — whose inner-city upbringing was tumultuous — get the counseling and support he needed.
When there’s an allegation as serious as rape, Potuto said, someone trained in investigations should handle it, not a coach who likely lacks that expertise.
“It removes the coach from the direct oversight of a very serious situation,” said Jamie Vaughn, UNL’s senior associate athletic director for compliance.
Foster, who is UNL’s Title IX coordinator, said that her office staff includes a former prosecutor who has experience in handling sexual assault cases.
She said her office’s goal is not to determine if a crime was committed — that’s up to police, prosecutors and the courts — but to determine if there have been violations of Title IX and the student code of conduct.
In a court of law, prosecutors must prove “beyond a reasonable doubt” that a crime was committed. But the equity and compliance office has a much lower standard of proof: “the greater weight of the evidence,” or enough evidence to convince an impartial person that the scales of justice tip, even slightly, one way and not the other.
That is the same burden of proof used in civil trials, and it has led to some split decisions in sensational cases. The most sensational was the O.J. Simpson case. After a criminal trial, the college and pro-football star was found not guilty of killing his ex-wife and a friend of hers. But he was found legally responsible for their deaths in a civil lawsuit and ordered to pay $33.5 million in damages.
Foster said the differing standards of proof may be due to the gravity of the consequences. In a criminal trial, a defendant can lose his liberty if sentenced to a long prison term; her office is determining if a student should be barred from campus, suspended from activities, moved out of a dorm or ordered into counseling.
There was a recent decision in which the equity office drove the disqualification of a football player. Avery Moss was told by UNL’s Title IX office in January that it would not lift its “ban and bar” restriction on him entering the campus, thus stopping him from playing football for Nebraska.
Moss was fined $500 for indecent exposure after a December 2012 incident at a campus convenience store. He was banned from entering residence halls, but violated that ban and was banned from campus.
Moss said he had assumed that after adhering to a self-improvement program ordered by the university for a year, he would be reinstated. But the ban was not lifted.
UNL officials did not comment. Officials said they are barred by student privacy laws from commenting on such decisions.
Moss ultimately transferred to Youngstown State to play for Pelini.
It is unclear where things stand for Armstrong, Westerkamp, Trey Foster and any other student who might have been involved in the recent alleged incident.
The equity and compliance office, as is its responsibility, is most assuredly investigating the situation, though it cannot confirm that.
A student-athlete has the right to present and contest evidence in a Title IX probe, and if he disagrees with the findings and suggested consequences, can appeal.
Susan Foster, the equity and compliance office head, said her office works with victims who might need time away from campus and permission to delay tests and miss classes as they work through their trauma. She said that a big part of her job is to ensure that students know their rights and responsibilities under Title IX. Earlier this year, she spoke to student-athletes.
“Athletics asked me to come and meet with every team,” Foster said. “There’s been a very big commitment to make sure that everyone there understands the process and what behavior is expected.”
Contact the writer: 402-473-9584, firstname.lastname@example.org