Baylor Sexual Assault Report Produces Punishment, but No Paper Trail


“Names tell you who you can sue, too,” Ms. Lopiano said.

The lack of transparency has raised questions about how sincerely Baylor is reckoning with what it has acknowledged as a huge problem: a serial flouting of Title IX and, in the words of the summary, “a cultural perception that football was above the rules.”

Even those who have defended the university employees who were punished have decried a lack of supporting documentation.

“It was our Lord who said, ‘The truth shall set you free,’” said Vincent Harris, a Baylor alumnus and guest faculty member who started an online petition supporting Mr. Starr and demanding that the full report be made public, “and it’s pretty hard as a Christian university when we aren’t focused on what the actual truth is.”

George Freeman, the executive director of the Media Law Resource Center, a trade association of law firms and media companies, said he believed that it was in Baylor’s best interest to be more forthcoming.

“From the point of view of policy, public relations and transparency, there are so many questions that so many people have raised about the incidents and the actions Baylor has taken as a result of this investigation that it seems both inappropriate and disadvantageous for the university to try to keep things covered up,” said Mr. Freeman, a former assistant general counsel for The New York Times Company.

The lawyers who led the investigation, Ms. Smith and Leslie Gomez, are considered the gold standard in the nascent field of sexual assault compliance under Title IX, even as critics at some campuses they have investigated have accused them of issuing reports that ultimately serve the interests of the universities.

At Occidental, Ms. Smith and Ms. Gomez did not to speak to some accusers, stonewalled faculty complaints and “whitewashed” the problem, according to Caroline Heldman, a professor of politics at the college in Los Angeles. Ms. Heldman said she believed that the Pepper Hamilton lawyers had provided an imprimatur of impartiality while letting the administration off the hook.

“They blamed the people who blew the whistle instead of providing an overview of the problems,” Ms. Heldman said about the final report, which found that a campus advocacy group had dissuaded honest reporting of sexual assault.

William Clay Turner, who encountered Ms. Smith while he represented a University of North Carolina student, said she was “getting hired by universities at an exorbitant rate to win some credibility where they have none.”

Mr. Turner, who expressed respect for Ms. Smith, said he felt that she was restricted by the universities’ terms and that they were the ones “retaining control and making all the decisions.”

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Baylor fired Art Briles as its football coach after outside lawyers investigated the university’s handling of sexual assault accusations. One of his former players was convicted of sexual assault in August.

Credit
LM Otero/Associated Press

Ms. Smith and Ms. Gomez vigorously defended their work and their independence, saying in an email message that Occidental had settled its case with the Office of Civil Rights, which put out a statement echoing their findings.

“The bulk of our practice is committed to serving as an outside counsel/consultant in the development of legally-compliant, trauma-informed, fair and effective campus practices,” Ms. Smith and Ms. Gomez wrote. “We are not afraid to ‘call it as we see it’ and have built a strong reputation for doing so sensitively and fairly.”

There may be an inherent conflict when outside lawyers are paid by a university to perform independent investigations, said Ms. Lopiano, the consultant and former athletic director. “Common knowledge right now says that when we’re dealing with issues of sexual abuse or harassment, there’s no question that you should go to an outside investigator, not your employed staff,” she said.

“That being said,” Ms. Lopiano added, “how do you know you’re getting a true and independent investigation?”

The answer, she said, was transparency: “A researcher is not worth her mettle unless she publicly reveals her data.”

Further illumination of the Baylor investigation may still happen. After the university insisted that no “full report” existed, the Big 12 specified that it had requested “written materials as well as any information that has been conveyed orally to University leadership or to its Board of Regents.”

And Baylor still faces at least two Title IX lawsuits brought by sexual-assault accusers.

“We intend to request in discovery any sort of investigation materials about these incidents and others like it,” said Chad Dunn, a lawyer in one of those suits.

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