��֭����

Update (December 17, 2016): FIRE's Joe Cohn spoke to  and about the issues raised by the team's boycott.

Yesterday evening, the University of Minnesota football team after 10 members of the team were earlier this week following the university’s investigation of sexual misconduct allegations. Scheduled to play in the Holiday Bowl on December 27, the team’s remaining players are criticizing what they perceive as a lack of due process and demanding both that their teammates be reinstated and that university president Eric Kaler and athletics director Mark Coyle issue apologies.

The Star Tribune that the suspensions are a consequence of newly recommended sanctions from the Office of Equal Opportunity and Affirmative Action (EOAA), the university department responsible for Title IX enforcement. The EOAA recommended that five players be expelled, four be suspended for one year, and one be placed on probation for their alleged involvement in a sexual assault committed against a female student following a football game in September. However, a law enforcement investigation into those allegations concluded without charges or arrests.

A law enforcement agency’s decision not to bring charges against a student is not binding on an institution of higher education. But the public should ask questions of institutions that contradict law enforcement conclusions by imposing sanctions on students. Law enforcement officials undoubtedly have superior tools to investigate allegations of criminal activity. For example, colleges don’t have subpoena power, so they cannot compel potential witnesses to cooperate with investigations or put them under oath if they are willing to testify. In this instance, prosecutors may have decided not to indict the accused players because they did not believe they could have demonstrated probable cause to justify the indictments. If this is so, it is hard to see how a school could meet the preponderance of the evidence standard, which is even higher.

The Minnesota football players are far from alone in arguing that they were disciplined for alleged sexual misconduct in a campus judiciary without due process. Scores of lawsuits filed since 2011 by students around the country have alleged the same. Because of the stigma associated with allegations of sexual misconduct, however, plaintiffs typically hope their cases are resolved quickly and quietly to avoid compounding the reputational harms associated with being accused of sexual assault. While this is understandable, it also means that the public often doesn’t see the human consequences of denying students core due process protections.

In this instance, not only are the names of the accused students known, but their teammates are publicly standing up for their rights. This is not the first time that an accused athlete’s teammates protested the lack of transparency and due process in a sexual misconduct proceeding. Earlier this year, publicly showed their support for their team captain—who disappeared from campus suddenly amid sexual misconduct allegations, and is now suing Yale—by wearing T-shirts with his number and nickname on them before their game against Harvard University. By resolving to boycott the Holiday Bowl, the University of Minnesota football players are asking the public to take notice.   

Unlike the accused University of Minnesota players, most students do not have the ability to draw the kind of attention to their cases that the football team has in taking their stand. FIREhas long argued that universities often cannot justify in public what they try to do in private, and because of the sensitive nature of sexual misconduct cases, too many schools have been able to engage in egregious denials of due process with little public scrutiny. Every time students publicly demand fair treatment—whether they are accused students or complainants alleging miscarriages of justice—it helps raise awareness of the importance of due process protections and fair procedures for all. When student athletes speak out, it brings further public attention to the problem.

Of course, student athletes—like all students—must receive fair treatment when allegations against them are being evaluated by a college or university. FIREshould neither be treated with favoritism, nor be disfavored, because of their status as student athletes.

If FIREhas learned one thing in our years of analyzing campus sexual assault cases, it’s that when it comes to institutional bias, the winds don’t blow in only one direction. One campus administration might decide that protecting a star athlete is necessary to protect its reputation or financial interests. Another school may seek to make an example of a star athlete, regardless of the facts of the specific case, in an attempt to send a message to other students or the general public. Because colleges investigate their own students, they may face serious conflicts of interest, inviting them to address allegations guided by a desired outcome instead of an impartial review of the evidence. Incorporating meaningful due process protections would go a long way toward ensuring that all cases are handled with the impartiality that complainants and accused students deserve, both at the University of Minnesota and across the country.