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Comments on BICOA Report

by Mark E. Schantz

January 30, 2003

I appreciate the opportunity to share some of my reactions to this report. Perhaps it would be helpful to begin with the section on recommendations. As a general matter, I think I would be supportive of all of these recommendations as I understand them. Some of the details may be unclear or even problematic, but all of them make potential sense. There are just two recommendations about which I wish to make a comment. In that regard, I should make clear the obvious: I'm speaking for myself and Athletics -- not the President.

In regard to Recommendation 1B, the committee suggests the department should report alleged violations of University policy to the Vice President of Student Services or the Office of Affirmative Action. For the record, that was done in this case. I am unsure how far this recommendation goes. I do not think student-athletes should be subject to different rules than other students. And, I don'st think student-athletes should be made mandatory reporters concerning violations of the Code of Student Life.

I suppose I should also make some comment on your recommendation that the General Counsel not be the Vice President to provide administrative oversight of Athletics. (Do you really think I can afford to forego the huge bonuses I get from taking on this extra work?) Seriously, I do understand there can be concerns, both theoretical and practical, about a staff position like the General Counsel performing administrative roles. In point of fact, lawyers on my staff regularly get asked to undertake administrative assignments and I try to keep that to a minimum, often with little success.

The decision that I would undertake this role, as you know, was done in the context of collapsing one vice presidential unit and asking several vice presidents to assume additional duties. I think it might be said that I was viewed as the least problematic choice in that particular context. Certainly, if President-elect Skorton wishes to restructure this arrangement, he will have my full cooperation, and I am sure he would appreciate your thoughts and President Boyd's thoughts on the matter. I will tell you that I do not believe the dual roles were a problem in the Pierce matter, at least not at any time prior to the acceptance of Pierce's guilty plea. I believe I was wearing my Athletic hat at all times to that point, and in circumstances where I might have been perceived as speaking for the President or the entire University, I took what I believe were effective steps to advise the lawyers for the parties otherwise.

So, again, I believe I am fine with your recommendations.

I am not so fine with the review findings in Paragraphs 2 and 3 on page 2. I have serious issues with the paragraph which begins, "Our review indicates that errors in procedures, judgments and communications were made in the Pierce case."

In the third paragraph you go on to say that the friends and supporters of the University want clarity and closure on this matter. If I may be quite direct, I would say that review findings (a) through (d) provide neither. The statements are vague to a fault and suggest a role for Athletics in the outcome of the matter that is greatly exaggerated. I have no idea whether the committee was trying to protect particular individuals by this vagueness, but the result is innuendo which does just the opposite and potentially implicates a range of people who had nothing to do with the very general problems you purport to identify.

In addition, let me focus on a few of the specifics. With respect to review finding (a), concerning lack of consultation, I must say that if I understand what is being suggested here, I simply disagree. First, the contact with people who actually crafted the settlement in the Pierce case were initiated by them namely, the Johnson County Attorney's Office, counsel for Pierce, and counsel for the victim. We were initially asked for information and ultimately asked if we could work with an agreement involving many parts, one of which related to Pierce's future relationship with the basketball program.

For the record, it has been specifically suggested to me that Bob and I should have consulted the Chair of BICOA prior to advising Pat White that we could live with the proposed plea agreement's provisions relating to basketball. I would note that neither the University Operations Manual nor the BICOA manual suggest any administrative role for it in initial decisions relating to scholarship or practice matters. The University Operations Manual is entirely clear that BICOA's role is to advise the President and Athletic Department administrators on policies and procedures, not decide specific matters (See Operations Manual § I-2.8(23).) In addition, it would have been quite inconsistent with the BICOA Manual to involve the Board in primary decision-making concerning practice or scholarship retention. The Manual itself assigns a review function to BICOA of decisions made by coaches or the Athletic Director adverse to a student-athlete. The BICOA Chair is given a central role in these review proceedings. Were he to participate in the primary decision, his ability to preside over the review process would be fatally compromised.

Review finding (b) concerns inappropriate statements. The way that finding is phrased is either misleading or inaccurate. If you are referring to a statement made by a coach, I think that has been addressed by the media and by University officials, and does not require further action by the President. If by representatives of Athletics you are referring to me, Bob Bowlsby or Jane Meyer, who were the people primarily involved in the Pierce matter, I believe you should be more specific in your reference. To date, no one has suggested to me that any public statements Bob or I made were inappropriate.

Review finding (c) relates to the amount and timeliness of protection and support given to the victim. This finding references University officials, so I am unsure whether you are talking about Athletics or others. I will tell you I know for a fact that Bob Bowlsby spent considerable time with the victim's father. I had a lengthy conversation with him as well about University resources and remedial options. I also know a substantial portion of Jane Meyer's time was devoted to the victim's concerns.

Let me make a point about roles in this regard. I believe we were quite clear with the coaches of both Pierce and the victim that they could and should provide emotional support to their players. We also made clear that it was not Athletics‚ place in general or their role in particular to give the victim advice on where she should file formal complaints or otherwise influence any legal proceeding.

But that was a kind of support the victim very much needed that Athletics could not and should not provide. Having said that, I will tell you I think one of the larger University issues that ought to be addressed is whether anyone, including people from offices who you interviewed, really gave meaningful, concrete advice to the victim on her options and their implications. My belief is, and I may not have all the facts in this matter, that she did not get that critical support until her family engaged counsel for the victim. Whether that function should rest somewhere in the University or otherwise in the community, I will leave to others, but it is my firm opinion that this community will not have an effective program to combat sexual assault unless victim welfare is looked out for in precisely that respect.

Review finding (d) states, "Pierce's status as an athlete dominated the concerns of some of those involved to the detriment of focusing on the broader interests of the University." If you are talking about the media, of course, that statement is true. They would have been much less interested in the matter had it not involved a prominent athlete. Pierce's status as an athlete also was central to Athletic's concerns at the time of his suspension. We changed his status, as you recall.

You also may be aware we were told a provision in the agreement between the parties also related to Pierce's status as an athlete and obviously was of considerable importance to him and his counsel. To the best of my knowledge, neither Bob Bowlsby, I, nor any member of the senior staff advocated for any more favorable status for Pierce than what he and the victim had agreed upon through their counsel. If you are saying something different than that, you should say so with specificity.

There is one final matter that I believe should be brought forward in a clearer fashion. The report suggests that errors in procedures and judgments were made in a context that references the Athletic Department's connection to the plea bargain. To my knowledge, no one has suggested there was any written procedure to govern how we were to relate to requests from the County Attorney or counsel for our student-athletes with respect to athletic provisions in a plea agreement.

It has been suggested to me, however, that the better course of action for us, when contacted by Pat White, would have been to say, "Sorry, we appreciate your interest, but the University will not address these issues until the criminal matter is resolved."

That view is coherent and at least theoretically plausible, and I suppose our decision to work with the parties could be characterized as an "error in judgment" by those who hold to that theory. If that is the committee's contention, then I believe there should be a good deal more clarification and discussion of that issue.

Later in the report, the committee suggests an important role for BICOA concerning the welfare of student-athletes. It is my view that this emphasis would be inappropriate if Athletics is not willing to involve itself where a student-athlete's vital interests are concerned and the student-athlete requests our involvement. More broadly, it seems to me there should be consideration of the centrality of the victim's interests in any effective University or community program to combat sexual assault. Revictimization, which has occurred in this matter on several occasions and in several ways, can only inhibit the willingness of victims to come forward and subject themselves to the difficulties inherent in sexual abuse prosecutions, difficulties which are greatly enhanced when the media takes a special interest in the case. In this instance, the victim had the courage to come forward with the charge, provided the County Attorney with a statement and other evidence, and then obtained an opportunity to have the matter resolved in a manner that her counsel represented to us met her objectives in filing the complaint and that protected her privacy.

It is possible that would have occurred had the University taken the "come back later" approach, but in my view, there was a significant risk it would not. To the extent of that risk, the "come back later" approach must prefer some other interest to that of the victim.

I expect that the Raymond Committee will address these latter issues in some depth and their perception of these rather complex issues could differ from mine. But there is a lot more to digest than your casual findings suggest.

Having criticized the committee for vagueness, it is possible I have erred on the side of specifics. But let me make a general suggestion to the committee. I believe the University would be better served were you simply to delete the two paragraphs I have referenced. I can detect little connection between the review findings and your recommendations. In the alternative, you might consider tabling the report until you have the report of the Raymond Committee and can then frame your concerns more specifically in light of its findings as to who did what, when.