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Tennessee Sexual Assault Lawsuit: Deliberate Indifference, Acting Lawfully, and Impacting the Culture

A federal sexual assault lawsuit calls the university's culture into question, where the hardest work goes beyond following the law.

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Randy Sartin-USA TODAY Sports

Here is a list of things I am not:

  • A lawyer
  • Someone who personally knows any of the individuals mentioned in the lawsuit
  • Someone who knows the full details of any steps Butch Jones, Dave Hart, Jimmy Cheek, or anyone else in the athletic department or the university has taken in the past to address this issue behind the scenes
Here is a list of questions I do not have the answer to:
  • Should Tennessee settle this lawsuit?
  • If they don't, who will win?
  • How much credit should we give Butch Jones, etc. for immediately suspending players who have faced these allegations?
  • How will all of this impact Tennessee in recruiting, on the field, or with the NCAA?
The federal lawsuit filed by six Jane Does against the University of Tennessee leads with language accusing the university of deliberate indifference.  It's a term with a legal background, but also one that gives pause to the current culture at Tennessee.

There are 66 pages of official documentation, which you can find here.  It details the high profile (which in this case means mostly football related) allegations of violence, harassment, sexual misconduct and more going back more than 20 years at Tennessee.  While I might be curious to know how the length of that list compares to those at other major football schools, even if it was shorter than others it would not be cause for celebration.

Two weeks ago Vice Chancellor Vince Carilli sent an email to all UT students with information on the university's response to reports of sexual assault.  He wrote, "It is important that victims are able to trust that our campus will support them if they choose to report a sexual assault."  This is the trust that is most important.  When people throw around words like trust and integrity, I'm not worried about how good any of the Vice Chancellors can feel about their reputation.  I'm far more concerned with the freedom, safety, and trust a victim feels and has in the reporting and recovery process, and far more concerned with the education and accountability presented by the athletics department and campus itself, for all students, so that real personal development might take place and these things might never see the light of day.  Not because they are reported less, but because they happen less, and are reported more when they do.  That's the culture we want to build, at Tennessee and everywhere.  When colleges and athletic departments tell the parents of 17 and 18 year olds they want to help make their children not just better athletes or better students, but better people, they really are talking about their most important work.  Situations like this make us question the honesty of that work, and hopefully in turn make us even more committed, from Jimmy Cheek, Dave Hart, Butch Jones, and all involved, to a culture that continually evolves into something healthy instead of something that needs to be tampered with when all parties involved didn't do a good job with student development.

It is this idea that the "deliberate indifference" language draws me back to.

Tennessee's official statement on the lawsuit is included in The Tennessean's initial report.  It begins with, "Like the many other college campuses facing the challenges of sexual assault," which is true, but not helpful.  Sexual assault is an unfortunate reality on college campuses nationwide, those with or without major college football teams.  And that reality makes Tennessee zero percent less responsible for what happens on its own campus.

UT's statement goes on to suggest they have spent time and money on their campus environment, education, and encouraging the reporting process.  They correctly point out their own disciplinary action should not violate state law or anyone's constitutional rights.  And they believe, in the case of these six Jane Does, the university acted "lawfully and in good faith, and we expect a court to agree."

As stated, I have no idea whether a court will agree.  What I do believe is, in taking steps away from "deliberate indifference?"  "Acting lawfully" may be enough to win in court, but it isn't good enough for the culture itself.  We can do more.  We can be better.

Colleges and universities draw in 18-22 year olds from diverse backgrounds, and 85 scholarships do the same each fall.  The responsible adults on campus usually get 3-5 years (or sometimes more if you were like me at 18-22) to impact their lives.  Sometimes you get kids from a particularly healthy culture.  Sometimes you get kids from a culture where "people get shot for doing what (you) did," as the lawsuit alleges in the portion concerning Drae Bowles being assaulted by teammates (which Bowles denied a year ago according to a story this week from Dustin Dopirak).  Either way, you have a finite amount of time to influence their lives, and the roster and the student body are refreshed each fall.

"Acting lawfully" is the easier course of action.  Create rules and enforce them when they're broken, up to and including the zero tolerance rules the lawsuit calls for at its conclusion.  And perhaps the university has done this.  Maybe they're not deliberately indifferent.

But if, as we said last March, the university's most important work is making better human beings?  We must aim higher than simply acknowledging that we followed the law, or followed it well enough to win in court.

On top of the existing culture at large universities is the existing culture in luring four-and-five-star athletes to the football and basketball teams of those large universities.  The lawsuit alleges the athletic department "encourag(ed) parties with underage drinking to benefit recruiting."  This would make the readers of every blog on this network bat zero eyes if said about their own school.  And, again, that's not helpful.  Whether or not other schools throw better or worse parties isn't the issue.  Does the existence of that culture at all promote a hostile sexual environment, as the lawsuit alleges?  If so, the way we do business must be examined.

One of the most disturbing things I've heard in this conversation over the last few days is the proximity of "stopping sexual assault" and "winning football games".  It's why bullet point number four up there in the list of questions I don't have the answer to matters exponentially less, so much so that to put them in the same sentence should disqualify you from the conversation.  If Tennessee or any athletic department does something in recruiting or in the day-to-day care of its athletes that specifically puts anyone at increased risk of sexual assault, you stop doing that thing, period.

You can act lawfully, do it well enough to win in court, and cross your fingers you won't have to go there too many times.  I don't know how often Butch Jones and Dave Hart are crossing their fingers.

But to me, to act in good faith is to intentionally work to create a culture of not just fewer incidents, but healthier interactions and relationships.

Here's what Butch Jones said when asked about the university being investigated for its handling of sexual violence back in July on SportsCenter:

"Well, (those are) issues that are across campuses, unfortunately," said Jones when asked about the federal investigation. "There's no place for it. We spend a lot of time with our player welfare and development. It's not just an in-season, off-season program. It's a year-round education program. Again, these are issues across campus. It's nationwide. So, we are going to do anything and everything we can to continue to educate our players."

Jones then summarized the message he will deliver to his players on the topic when they arrive for fall camp next month.

"We talk about it every day that we are together," Jones said. "And again, these are societal issues. Unfortunately, that's where we are at right now. But just, it's the whole education process. We talk about the one-second rule. In one second, your life can change at any moment."

Butch followed the same tactic of leading with, "This happens everywhere."  His language from there centers on the welfare of his players and how those one second moments can affect their lives.  But the reality is, nothing ever happens in just one second.  There are thousands of seconds before then, each one making us into the person we become and the choice we will make in that next second.  To me, this line of thinking rings too much of the avoidance of consequences and not enough of working to create a better culture that creates a better choice.  Anyone who works with 18-22 year olds or human beings in general will need large doses of grace and truth, and both must be utilized in appropriate fashion.  This can help shape a culture where we don't just encourage students and athletes not to rape someone and/or lead them to believe they'll receive treatment special enough to make it okay if they do.  The best, hardest work here is to shape a culture where young people of all backgrounds are helped to make decisions and lead lives that don't bring them to that one second in the first place.

The culture is a living, breathing thing, quite large and continually refreshed.  It cannot be changed instantaneously, only impacted.  I don't know the fullness of what Butch Jones and Dave Hart have done in this regard; I would assume at least some of it has been good work.  But whether the university was deliberately indifferent or acted lawfully, the culture appears to have failed these six women.  Not every situation will be preventable, but the environment itself can and must always improve, and this is the work the University of Tennessee must give itself to.  Not to have a shorter list or a winning case, but to have a healthier culture today than it did yesterday.  To continue to be one percent better each day.  Because ultimately, the culture is always what we make it.

For more on how you can help prevent sexual assault, check out It's On Us, which has partnered with, among others, the NCAA, SEC, and SB Nation.