How Damaging Are UT’s Title IX Transgressions?

In Perspectives by Joe Sullivanleave a COMMENT

Very shortly after UT football players A.J. Johnson and Michael Williams were accused of rape in November 2014, John Adams wrote a column in the News Sentinel urging discontinuation of what has virtually become a new Vol fight song.

That would be the “Third Down for What” chant to the strains of rapper Lil Jon’s “Turn Down for What” that blares on Neyland Stadium loudspeakers every time an opponent faces a third down. The Lil Jon video includes a vivid depiction of a man with an erection making repeated humping motions from inside his sweatpants. But this vulgarity pales by comparison with the lyrics of a contemporaneous Lil Jon collaboration, “Literally I Can’t,” that includes the lyrics “Girl I know you can. I don’t wanna hear no,” followed by repeated shouts to “Shut the f*** up.”

By the time the 2015 football season rolled around, Johnson and Williams had been indicted—and are still awaiting trial. But the “Third Down For What” anthem was back in force, meaning Adams’ admonition went unheeded.

The chant’s perpetuation is at least symbolically suggestive that there may be merit to a lawsuit alleging “a hostile sexual assault environment created and condoned by the UT administration and athletic department.” The suit seeks unspecified damages on behalf of eight “Jane Doe” plaintiffs who allege they were sexually assaulted by UT football and basketball players over the past four years.

Last month an administrative law judge appointed by Chancellor Jimmy Cheek dismissed UT’s own disciplinary case against Johnson, ruling that the university no longer had jurisdiction because Johnson had been allowed to graduate before proceedings were initiated.

UT officials have said they were requested to hold off until the Knoxville Police Department completed its investigation. But guidelines promulgated by the federal Office For Civil Rights, which regulates Title IX, stipulate that, “A simultaneous police investigation does not remove a school’s responsibility to resolve a complaint” and that a school’s response should be “prompt and equitable.”

Yet it took until May 2015 for the university to start proceedings against Johnson—three months after he was indicted by a grand jury and five months after his graduation in December 2014. And what a graduation ceremony it was: The lawsuit complaint contains a picture that’s worth the proverbial thousand words, of a grinning Cheek and Johnson posing together in their caps and gowns.

Cheek was also at his cheekiest in a very different way in his May 2013 dealings with then Vice Chancellor for Student Affairs Tim Rogers. By all reports, the chancellor chastised Rogers for what he believed to be punitive punishments, especially to athletes, meted out by the Office of Student Judicial Affairs, which Rogers oversaw.

Rogers attempted to go over Cheek’s head in a memo to his nominal boss, UT President Joe DiPietro. The memo asserted in part that “Athletics enabled by way of the Chancellor’s directives and interference: (a) wields undue influence; (b) places our institutional integrity at peril; (c) places our students at peril.”

When DiPietro sided with Cheek, Rogers abruptly “retired,” saying his position had become “untenable.”

Rogers’ retirement coincided with the termination of the director of the Office of Student Judicial Affairs, Jenny Wright. A few months prior, Director of Athletics Dave Hart had verbally accosted Wright in front of Rogers and several other onlookers. Wright has also attested that another Athletics Department administrator had warned her via email that “you can’t hide from us” and that “I can have your boss fired in an instant.” Ironically, Wright’s termination was ostensibly for refusing to attend a meeting to address allegations of an inappropriate relationship with a student athlete on her part—which an independent investigation later found no evidence of.

Both Rogers and Wright are now collaborating with Nashville lawyer David Randolph Smith, who has brought the suit against UT. The civil damage suit under the Title IX gender bias law alleges that several of the plaintiffs were so traumatized by sexual assaults that they felt compelled to leave the university and suffered other emotional damage.

The primary standard for determining liability in such cases, as best I understand it, is a 1998 U. S. Supreme Court decision stating that “damages may not be recovered under Title IX unless an official with authority to institute corrective action has received actual notice of and is deliberately indifferent to the… misconduct.”

This seems a very high bar for the plaintiff, and none have scaled it in any other Title IX case, of which there have been many. Indeed, the four dissenting justices in the 1998 decision, which involved the sexual abuse of a high school student, opined that “the court ranks protection of the school district’s purse above the protection of an immature high school student.”

Nonetheless, the 87-page complaint in the lawsuit against UT is replete with such assertions. Over and over, it contends the rape (of the various Jane Does) “was a causal result of UT’s deliberate indifference and policy decisions to create a hostile sexual environment. UT consciously disregarded the general and specific warnings by Jenny Wright and Tim Rogers.”

To be sure, both Cheek and Hart have gone to great lengths of late to profess a resolve to be protective of female students. “To claim that we have allowed a culture to exist contrary to our institutional commitment to providing a safe environment for our students or that we do not support those who report sexual assault is just false,” Cheek wrote in a recent email to faculty and students. And he points to a new “Policy on Sexual Misconduct, Relationship Violence and Stalking” that was promulgated last August.

Rumors now abound that Cheek will soon retire. But that won’t keep him off the public hot seat when he’s called to testify if the suit goes to trial. And if Lil Jon’s obscene rappings are emulated at UT football games again this fall, whoever is responsible for them should be sacked.

Joe Sullivan is the former owner and publisher of Metro Pulse (1992-2003) as well as a longtime columnist covering local politics, education, development, business, and tennis. His new column, Perspectives, covers much of the same terrain.

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