consultants are sandburs

Tuesday, December 27, 2016

More on the short-lived Gopher football team boycott. And on the strange silence of the EOAA report about possible lack of institutional control, for which university tort liability to the woman might arguably attach.

First, Reusse has a recent Strib report, here, (Hewitt mentioned), which may help reader understanding of history.

Without tracing back a link, the restraining order was reported to have no-contact parameters; the athletic department where the woman was reported to have a job; and the entire stadium where the woman was reported to have some ill-reported job duty during games; the cause of the initial four-player two game absence from game days. Also, from memory, that earlier reporting quoted the woman post-attainment of the restraining order saying, "I just wanted to be safe."

With no reported detail on whether there was ongoing verbal harassment of the woman at her job, of the kind of "Gee look what I have on video on my phone," or something similar, then one would presume the woman duly complained to athletic department staff and also, presumably met dead ears. That is on the job harassment tolerated by "the boss" after notice; and if it happened that way it might be actionable.

Last, reporting is that Freeman as County Attorney is having his office reconsider whether chargeable crime occurred.

That is escalation of the threat to the young men under other scrutiny; subsequent to the boycott hitting the news. Prosecutors are in the habit of seeking stern sentences beyond offered plea bargaining deals; if a plea bargain is refused. With that background, a reconsideration after the players stood up collectively to be counted as wanting due process has the smell of retaliation.

A single bad evening's event of bad conduct and bad decision making of the young men under scrutiny, along with the level of liquor consumption the woman admits prior to seeking party activity, is one thing; whereas a tolerated ongoing level of verbal on the job harassment of the woman would be a separate worry; and one attaching blame to the institution; to "the boss," and with the woman having had a lawyer at the point the restraining order was attained - if memory of reporting is correct - then the woman seems to hold a gold plated or solid goal potential cause of action against the institution and its deep pocket. Expect it, perhaps or perhaps not.

That aspect of unreported possibility which EOAA reporting could have investigated and illuminated makes the lack of such inquiry or "weighing of evidence and questioning of supervisory staff at where the woman worked in the athletic department" suspect, as if the EOAA regarded such "diversion" from the issue were thought by EOAA investigators as irrelevant for investigation; curiously so; and the press should be pressing the EOAA and the Gopher athletic department in that direction even while the EOAA ignored the question.

LACK OF INSTITUTIONAL CONTROL: From Clem Haskins days that term is the familiar catch-all program sanctioning buzz-word of the NCAA. And given the magnitude of the cash flows college football generates for the institutions and the NCAA they want "institutional control" to be ever vigilant. They say. But the institutional goal is exploitation of the unpaid professional football players universities employ to weekly beat up on like individuals on "the other team."

Peril to the cash cow could be the preeminent NCAA concern, among those who are on its staff to police programs, and HEY, FOLKS those troublesome boycotting rude boys need a lesson; which would square with the prosecutor reconsidering a no-charge finding. Let's teach how when nails stand up, they get hammered down is a way of phrasing such possible motivations.

The lesson the college paid high level leadership might be aiming to import is one possibly aimed at student athletes not making the cut at the next level; in the real world the boss is right and don't stand up to the boss without expecting adverse impact. If that's what college educations have sunk to these days it would be a sad event. We all should hope that looking closely and skeptically at the institution and its leadership will prove that such worry is groundless.

It could be groundless. Or not. Why, we may deliberate, are the press and institutional employees not looking for anything under the hat that way.

Providing the accused fresh due process evidentiary hearings on the record; with judgment by peers being important because student value systems of community reasonableness might differ from that of institutional elders getting paychecks. Judgment by peers dates back at least, in writing, to the Magna Carta as a constraint on the power and arbitrary discretionary authority of the king [a/k/a Kaler]. Restraining a king to accept judgment by a jury of peers was a Magna Carta consideration having an ongoing life and relevance from all the way back to 1215 - i.e., nine centuries old, as a concept of due justice. The text of the historic document is online in modern English, here.

As argued previously at Crabgrass, there are loose ends to loose ends, a Gordian knot of loose ends; and having ten young men walk the plank resolves only a few. The press owes the public a broader viewpoint; and taxpayer financed institutions of higher learning should be held to a high standard within their leadership ranks, and accordingly be very conscious of how their actions may appear. They should not have a blind eye to themselves while judging young men under the hardest of sexual misconduct standards; yes means yes seems the early evening situation, and stop means stop, after a consensual start is the bugaboo of the new standard of correctness being advanced; ten men being at risk.

In a nutshell, the rug is not big enough to sweep any dimensions of culpable institutional negligence under, and out of sight. Also, there is the Nixon dimension; a cover-up can lead to a more entrancing and commanding line of inquiry than candor might entail.

In closing, reflection back to the Reusse item link in the opening paragraph is appropriate. Hewitt may have had a driving agenda which confused her lawyer's objective embrace of due process; with that seeming to be the boycott nexis. Reusee suggests an axe to grind; or at least a point to be made; and Reusse suggests the boycott leadership, prominent seniors with a few years of experience of Hewitt attention to athletics, may harbor the view the lady lawyer has an axe to grind against the high profit male athletic programs. The second cash cow sport at the U., (ahead of hockey), has not been without attention. But the campus scrutiny was ended once the criminal law authorities found no prosecutorable fault. How that result squared with Hewitt was not, to my knowledge, reported by the press. This time, EOAA reach was not as deferential to the County authorities as with Lynch.

A cynic might suggest that if there's to be a lynching without due process; don't make it a guy named Lynch.

If there was job site ongoing verbal harassment by players of the woman while she was an employee of the athletic department, there'd only arguably be institutional liability if athletic department leaders knew or reasonably should have known of harassment. If the woman complained to athletic staff, and it turned out to be to a deaf ear, and then a lawyer/restraining order and a complaint to EOAA from a woman who says, "What I wanted was to feel safe." Had an athletic department effort of any force been made to make her feel safe, and then the lawyer/restraining order/EOAA thing landed anyway, the story would be different. We don't know the facts, and apart from the actual facts, we don't know what would be admissible evidence and how an impartial jury of peers would decide on whether there might be civil institutional liability allowing recovery of compensatory and possible punitive damages on a job site tolerance of harassment action. Things do not appear to be over with the boycott having been effective for less than a week. It got the question of due process into the sunshine. More shoes may drop. Coach might not be around to see all rumblings and settlement.

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