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NCAA Division I Breakout Session
Student-Athlete Behavior - Visibility/Accountability/Litigation
(Tuesday, June 15, 9:30 - 11:00 a.m.)


Judi Henry:

My name is Judi Henry and I would like to welcome you to the panel on Student-Athlete Behavior. I am the associate athletics director at Texas Tech University. Prior to this position, I served as dean of students and assistant vice president for student affairs for a number of years. In that position, I've had the opportunity to experience student behavior on both sides of the fence, so to speak. As we all know, students will be students whether that be student-athletes, students who are musicians, artists or scholars. Certainly that presents a learning opportunity for all of us. The potential for PR disasters looms large in athletics departments due to our high visibility.

Judy Rose has assembled an outstanding group of individuals to address the visibility, accountability and litigation aspects of this topic. Speaking first this morning, will be C.M. Newton. C.M. is currently the director of athletics at the University of Kentucky. A successful basketball coach, C.M. led the men's team at the University of Alabama from 1969 to 1980. He then became the assistant commissioner of the SEC before taking a job as the men's basketball coach at Vanderbilt University. After seven successful seasons, Newton moved on to his current position at Kentucky.

He has been the recipient of numerous awards, most recently, the recipient of the 1999 NACDA/Continental Airlines AD of the Year Award presented yesterday. He received both is bachelor's and master's degrees from the University of Kentucky.

Our second presenter will be Derita Ratcliffe. Derita has a long history at Virginia Tech, having served as a tutor, graduate assistant, recruiting assistant, assistant director of student life, director of student life and, currently, is assistant athletics director for student services. Derita will be assuming a new position, that being, assistant athletics director for administrative compliance at Eastern Kentucky University. She received her bachelor's degree from James Madison University and her master's degree from Virginia Tech.

Our final presenter will be Cindy Jewett. Cindy currently serves as associate general counsel for Arizona State University. She practices in the areas of employment and higher education law. She advises and represents university administrators on a variety of matters including those related to intercollegiate athletics. For example, investigations related to compliance matters, Title IX, student-athlete conduct policy and drug testing.

Each panelist will speak for approximately 10 minutes. We certainly do not hold all of the answers to this complex issue. We hope these comments will spark discussion among the group as a whole. We look forward to entertaining questions as well as sharing additional information from you.

C.M. Newton:

Thank you Judi, and thanks to Judy Rose for getting me involved on this panel. I've been asked to speak in a narrower vein to open this and to give you an overview of the situation that occurred on our campus recently that led to an alcohol policy that is specific to our university. The University of Kentucky, generally, has a history of trying to study the whole issue of alcohol on our campus. In 1998, our board of trustees, with all the binge drinking happening on college campuses, concluded they would have a campus policy to ban alcohol from the campus, specifically, the residence halls, sorority and fraternity houses, etc., to make our campus dry and to get the alcohol off our campus and out of our facilities. That was a board action by the Board of Trustees, not the athletics department.

UK athletics, for some time, had in place a program for alcohol abuse and use that dealt with education. A continuous program of speakers, literature, team meetings, those types of things related to alcohol education. The monitoring, where we observed the behavior or coaches and athletics personnel, the random testing, which as you know, is a weak area. It's very difficult to test for alcohol, but it was tied in to the drug-testing program we had. The counseling for those who warrant it and, finally, the disciplinary action anywhere from curfew restrictions to suspension.

We had varying degrees of success with this program. Our concerns were around several things, the underage drinking, which is totally accepted by our society and one that is part of our culture, and the responsible drinking for those who are of legal age. We had a situation involving Jason Watts, one of our football players, who had an unfortunate accident. He went deer hunting the morning after a home football game, that took the lives of two fellow students, one a teammate and the other a close friend. At the time, we didn't think alcohol was involved. Our reason for that was we had a rather stringent program of testing and monitoring of Jason Watts' behavior because Jason is an alcoholic. He was diagnosed as an alcoholic. He had gone through counseling, been in 12-step programs, had been in a treatment center. With the new football staff, Coach Mumme indicated to Jason that we were going to take the next step with him and that he would be tested on a random, but very regular basis. That testing occurred anywhere from daily to weekly and at different times.

It was our feeling Jason had achieved sobriety. Unbeknownst to us, he was, with the help of a tavern owner who was keeping his place open after hours, visiting this place. There was a long investigation that came out which has tremendous legal implications for the tavern owner because of other deaths involved relating to drinking-related accidents. Jason had been to this place after that football game and, as we found out later, been able to slip and got back to his drug choice, which was beer.

The accident occurred. The lives were taken. As a result, we sat down and looked at our program. We had spent some five or six years really stressing, monitoring and educating and finally decided we were going to take the stance we were going to the next step. We went to a zero tolerance program. We had a president that was willing to run the risk of that with us from a public relations standpoint and others. We came up with a new policy. I might say that Jason Watts is now serving a sentence of 10 years for involuntary manslaughter for the death of those young people. He recently applied for shock probation and I think it was denied.

The new policy we instituted in early December is one that is applicable to our university. It is not one necessarily I would recommend for yours, but we think it's the right thing to do at the University of Kentucky.

Basically, we've taken the stance that any student-athlete who is charged with a DUI will receive an immediate, temporary suspension from practice and competition, if there is a charge. The charge will be investigated immediately by our personnel, along with our legal counsel. If the charge has merit, the temporary suspension will stay in place. If the charge does not appear to have merit, the temporary suspension will be lifted. If the student-athlete is convicted of a DUI, he or she will be suspended indefinitely and will immediately forfeit their scholarship.

In the event the student-athlete is charged with public intoxication or underage consumption of alcohol, the student-athlete will be placed on a temporary probationary status and that student-athlete will be required to enter and complete an alcohol-counseling program. If the incident involves an additional charge, such as injury to persons or property, a more severe action may be taken.

We're telling our young people that if you're going to kill somebody, you're going to do it without our blessing. The DUI is something we take very seriously. We're taking it to the point that if you're charged, you are temporarily suspended or permanently suspended if you are convicted. Since this policy went into effect in December, in May of this year, we had a female soccer player who violated this policy and her scholarship was removed. She has decided to transfer. She could stay at the university if she chose, but she is no longer part of our program.

Since this policy was instituted for underage drinking, we've had one student-athlete who has been charged with underage drinking. That person is in the mandatory-counseling program. We've just made the assumption that if you can't be responsible about your drinking, than we assume you have a problem, whether you do or not. If it was a one-time deal, the counselors can determine that, but if you do have a problem, we're going to deal with it and treat alcoholism for what it is, which is a disease. We have had these things happen and so far, we think our policy is working.

The next step, and this is the one that was more controversial, we felt we had to put our money where our mouth was. I could not answer the question of the students that if you take this stance of a zero tolerance policy to alcohol and you're that serious about it and you're willing to spend all of this money and all of the attention that you're giving to it, why do you accept the advertising revenue that you accept on your radio and television networks, game programs and signage, etc. At that point in time, we had no signage, but we did have, as one of our primary sponsors, Budweiser and Miller. In Kentucky, with bourbon being what it is, this was not a popular decision, but as part of this policy, we would eliminate advertising by beer, wine and liquor companies on official UK outlets. Radio and television networks, coaches' shows, game programs, posters, etc. were eliminated, following the conclusion of the current contracts or sooner, if possible.

This received a lot of conversation, as you can imagine. Yet, we felt it was the right thing to do. This cost us approximately $400,000 in terms of revenue. It's our feeling that we can make that revenue up by some other source. At least we can now look our student-athletes in the face and say, "Yes, we're putting our money where our mouth is."

I won't bore you with any more of this. I will just say that I'm not advocating this as a policy for everyone. It is, in our opinion, a policy for the University of Kentucky that is right. It's one we feel very strongly about. If you desire any additional information, you can contact me at the university, or if any of you would like one of our student handbooks, just drop me a note. Thank you.

Derita Ratcliffe:

Good morning. The handout you have is a comprehensive action plan. This is a culmination of about six weeks of work. In the 1995-96 school year at Virginia Tech, we had the misfortune of having 21 arrests in an 18-month period. Primarily, they were football players. One incident involved 12 student-athletes. Our university president contacted our athletics director at the time, David Braine, and told him we needed to address this. Dave asked me to do some research, see what other universities were doing, investigate the incidents that had occurred on our campus to determine a number of things. We wanted to know what time of day they occurred, what day of the week they occurred, was alcohol involved, were they violent situations and were they enacted by individuals who had done things before. We also wanted to know the academic status for those involved in the incident.

Gathering all of that information, a committee was formed. The committee composition is on the first page of that document. It was people from across the university, including a current student-athlete, and some of the faculty members who were former student-athletes themselves, not necessarily at Virginia Tech. The committee was divided into three sub-groups. One group looked at issues regarding recruitment. Another group looked at encouraging appropriate behavior and the third group looked at sanctions for inappropriate behavior, which is how the document is broken down.

We then developed a skeleton for each group to work with. The first meeting of the committee was January 12. On February 14, we submitted a document to our university president which was submitted to the Board of Visitors and adopted February 21, 1997. Unfortunately, before the middle of May 1997, we had to use the plan. A student-athlete was involved in an incident of destruction of property and the athletics director had to put it into effect. Since it was adopted, it's only been used eight times. Basically, it's been used for incidents involving alcohol and DUIs.

Within the plan, there are a number of programs we said we would establish to encourage appropriate behavior. One of those we think has been very effective is a mentor program where we take graduate students, preferably student-athletes, who serve as, if you will, behavioral guides to first-year student-athletes, particularly football, men's and women's basketball and women's track. This is to help avoid pitfalls of the freshman year behaviorally. That's gone a long way in helping to give some guidance to people's behavior.

When we first had the plan, Dave and the rest of the committee thought the communication piece was the key. The AD and the associates went to each team and presented the action plan, what the programs were that we wanted to institute and what the sanctions were for inappropriate behavior which are very clearly stated in the last section. After that was presented to the team, they each had to sign off that it had been explained to them and that they understood their behavior would be governed by this document. That was kept on file in our compliance office with all of their other student files.

From that point on, we put it into the student-athlete handbooks. Again, when the compliance director goes around to each team at the beginning of the year to have drug tests forms signed, etc., they sign off on the student-athlete handbook form and indicate they understand they will be governed by this comprehensive action plan. Annually, they re-dedicate themselves to the understanding that this is what will be used to govern their behavior.

One of the other things we thought would come from this and we're happy to see that it has, is that our student-athletes are policing one another. They tell them that if they do x, y and z, this is what will happen, no if, ands or buts about it. It's not just happening within teams, it's happening across teams. We have women's soccer players talk to their girlfriends on the volleyball team. This is a good thing because it's fostered a number of things for us, not just keeping their behavior intact, but some relationships across teams which has helped in them supporting one another in their athletics endeavors.

I'm not going to talk too much about the recruitment or the encouraging of behavior. One of the first things one of our faculty members thought was important when writing this plan was that we establish a philosophy as a university. This is a statement of responsibility to student-athletes. It reads, "The University insures that every reasonable step will be taken to provide appropriate, comprehensive and ethically proper academic and life-skills support to its student-athletes." We have used this statement to govern everything we have done in our athletics department since the spring of 1997. This year, when we were responding to NCAA certification, we went back to this document to make sure everything we were putting into our minority opportunity plans and anything else, reflected what we said in the spring of 1997.

On page 10 of the document I've given you is where the sanctions for inappropriate behavior begin. Again, these are spelled out very clearly. If a student is arrested or charged with a felony, he or she will be suspended automatically from practice and playing. If they are convicted, they will be permanently dismissed from the team. The other piece of that was that the athletics department would recommend to the office of financial aid that this individual no longer be considered for financial aid. Unlike Kentucky, we don't make it immediately. If it happens in January, they have until the end of the semester on their scholarship, but there won't be funds extended beyond that.

A misdemeanor charge and/or conviction, which is the one we've had to use, the student is subject to a review process. On page 11, it tells you more about that review process which is conducted by the athletics director. We also thought it was critical that the coach not be the person in charge of putting this process into effect because of their relationship with the student-athlete. The athletics director would be at a much more objective position. The athletics director would consider the nature of the charge. With violence becoming more and more of an issue, was it a violent or non-violent offense? Prior behavior of the student-athlete is considered. Self-disclosure of the violation is reviewed.

If a student-athlete came to his or her coach or someone in the athletics department and said this occurred Friday night and here are the circumstances that were taken into account. Their cooperation during the investigation is taken into account. Did they try to hold information back or did they tell teammates not to speak with investigators? Were alcohol and drugs used? Again, in the research for this, we found that 90 percent of the 21 arrests over those 18 months involved alcohol. There were only two or three that did not involve alcohol. Those were some non-violent offenses.

The athletics director keeps a file of other cases that have triggered the action plan. He or she can look back and say we had a DUI with a baseball player and this is how we typically handled it, so that comes into effect.

If it's determined from that review process that sanctions are necessary, the athletics director may do any of the following that are listed there, what the key statement is, but shall not be limited to. This means just because it's not listed there on that page doesn't mean the athletics director can't say this is what you have to do. What has come into play there with DUIs and being drunk in public, etc., is that our students go into schools and do presentations in elementary schools. We have a rather large juvenile holding facility in our area and our student-athletes who have been found to have DUIs and those types of things go to this facility and give presentations to those young people. We've done some things we hope help them to reflect back on their behavior and how their behavior can take them to some places they may not want to go.

This document is now contained in our student-athletes' handbook. We review it with new coaches and new faculty members. After it was adopted by a board of visitors, it became a public document. In my time at Virginia Tech, since we've done this, I've sent it out to about 14 schools. People have requested it. I'll make sure Pat Manak has a copy so that anyone who wants can obtain it from him. This works at Virginia Tech. There are elements of it that can work at other places. It's a matter of looking at your student-athlete population, looking at the environment in which your university finds itself and making things fit.

Cindy Jewett:

Good morning. I think an institution knows it has far more visibility than it ever would want when you make it on to the "Tonight Show" monologue. Last year, Jay Leno decided to work into his monologue the line, "It's tough to coach at Utah because many of the players are Mormons and they go on missions. The players go away for as much as a year as opposed to Jerry Tarkanian's players who go away for five to 10 years." That kind of humor is troublesome because it reflects how much in the consciousness of our society the issue of crime student-athletes has become. That joke led to an article in USA Today last September that had an overview of student-athletes involved in crime. That report indicated that 25 of the nation's top football schools for the ESPN/USA Today poll, more than 70 of the athletes had brushes with the law. Among the 112 schools in Division I, at least 175 athletes were arrested for a variety of crimes in the past year.

Most of those crimes dealt with assault, sexual assault and crimes of violence. The article really talks about what Derita has been referencing and that is, the institutional response by developing policies within athletics departments for dealing with students who engage in crime. It indicated that of the 82 Division I schools that responded, 30 of those schools had adopted policies and there were a handful who were developing several more.

These statistics are not new; they're not unique. There's an editorial from the prior year that references 220 instances of arrests of student-athletes in Division I schools. It talks about a great number of those arrests being sexual assault or domestic violence with a spouse or a girlfriend. Those numbers are very troubling and require institutions to grapple with it because of the media.

I've been asked to talk about the litigation that may result from this. I want to cover briefly an overview of the culture that colleges and universities face. Historically, universities had a contractural relationship with their students. If it was in your handbook, you could say what you wanted to say and do what you wanted to do. It was very much a private relationship between the right of the institution to continue a student at the institution. Over time, many laws have been passed. Education has traditionally been an area of local concern. It has increasingly become the target of federal legislation.

During the '60s and early '70s, we went through a Civil Rights period where we had Title IX passed, Section 504 of the Rehabilitation Act passed. They gave certain rights to students that they heretofore did not have. In the mid-'70s and forward, we are clearly in the consumer rights era of legislation. Starting with the Purple Law, with the privacy of student information, equity and Athletics Disclosure Law, Crime Awareness and the Campus Safety Act, colleges and universities are required to report. This report in USA Today came out in September of last year and that's not a total coincidence because under the Crime Awareness and Campus Safety Act, September 1 of each year, all of us have to publish criminal statistics for the preceding three calendar years.

In October of this past year, the Higher Education Act Amendments were adopted and that law greatly expanded the reporting requirements. What used to be simply listing arrests, now includes listing referrals made to campus officials with significant responsibility for student and campus activities. What the amendments have done, which have caused grave concern on most college campuses, is blurred our responsibility to decide when is a student's behavior criminal, which is something we're not trained to do. That's something the police do. Versus when are we, as educators, applying our disciplinary codes because we're trying to educate our students to make better decisions with their lives and be contributing members to the university community.

Those distinctions are lost on congress because, in a large part, they think we haven't dealt with the situation very well. The law has expanded the reporting obligation to not just have a total number, but to list by on-campus, property we own off-campus, breakdown by residence halls and fraternities. So, what you may see is that numbers will go up. You will have to deal with media who are saying the problem is even worse than we thought because suddenly those numbers are not just crimes, their disciplinary referrals. You need to talk with your student affairs people, legal counsel. You need to think about how you're going to respond. If you have campus police, you need to get previews of those numbers to see how you're going to be impacted at the start of this coming school year.

The resulting litigation issues can be criminal, civil, in terms of a contract action or court action or a Civil Rights action. I'd like to talk about criminal action. Generally speaking, it's state of Arizona versus student-athlete. The institution is not a defendant. It is not an excuse for the institution to ignore the likelihood of a criminal charge because there are many hurdles that occur in criminal proceeding and you act at risk if you decide to sit back and wait for the criminal matter to be resolved. That could take a significant period of time. The public outcry you may face is the alleged defendant is on campus, still receiving money and still playing. You have to be prepared to grapple with that.

The biggest litigation avoidance technique you can take from this meeting is to know your institution's policies. Know them, know them, know them and know who administers them. Your policies include dealing with what federal law says an institution has to do, what state law quite often says an institution has to do and your policies and body of your own culture at your own institutions. Public institutions, many times, have a greater degree of accountability than private institutions. I can tell you, as a public institution, if there is a situation where a student-athlete is involved in a publicized incident that is bringing criminal charges, the Board of Regents who oversees the university system in Arizona is inundated with calls from very important people, like those who approve funding for the institution. We have to be responsive.

The reason you need to know your policies and your students need to know they are accountable to them is because there are different results. If we have a student-athlete who is involved in an incident and they live in a residence hall, they have a contract with the residence hall. We can apply our rules and they can have their contract terminated. That's fairly straightforward. They're accountable. If we have the same student being considered under ASU's student-athlete policy, we have options the athletics department can take that are spelled out. ASU adopted its policy in 1992 after a series of incidents with student-athletes with minor criminal behavior. We have a standard spelled out in that policy.

That's important for us because, at ASU, in our regular student code of conduct, we have a clear and convincing burden of proof to sever a student's relationship with the institution. That's very high. It's higher than what the residence hall requires, it's higher than what ASU athletics requires. We are a public institution, and for political reasons, that high level of standard was adopted many years ago.

I make that point because in the criminal context, the prosecutor has to prove beyond a reasonable doubt the student-athlete committed the crime as charged. It is very possible a student may not be found guilty of a crime because of that level of proof, but at the same time, faces discipline within the institution because there is a lesser burden of proof. That's okay. That happens. You have to keep in mind there are different purposes between criminal laws and institutional policies. Criminal laws punish. Hopefully, institutional policies educate. It is not intended to be a punitive measure. That's an important factor. There's a recent case involving the University of Maine where a football player assaulted a teammate on campus. That institution acted very promptly. Within seven weeks after the incident occurred, they had completed their student code of conduct hearing and had arranged for a suspension of the player from the institution. They also had done a partial revocation of athletics aid. That student, in the meantime, was charged with criminal charges and sought to have those thrown out claiming double jeopardy. The trial court agreed, but the Supreme Court of the state of Maine said no, that's inappropriate and re-instituted the charges because it was not double jeopardy.

The premise I hope you take from that scenario is it's very important to cooperate with law enforcement. You're going to be expected to. You're going to get bad press if you don't. It's going to be a one-way street. They may not give you too much information, but you'll give them information. If you have a public records law in your state, use it, because that way you can get the police reports and you can actually use a lot of their investigation to implement your own policies with your own burden of proof standard and not the higher criminal one.

On torts, there's really not a lot of new law. The key tort theory you need to be aware of is if you know of a player who has a propensity to engage in violent behavior that is outside the scope of the particular sport they are playing, then you need to be mindful of that. If you allow that player to continue to compete in competition or practice and that player hurts a teammate or an opposing team member, it is possible litigation will be filed, not only against the student-athlete, but the institution. You really need to know it is a propensity for violence. If it's a football game because it is a contact sport, there is a great birth for a player to be hitting another player. If it's a golf team member, a non-contact sport, and they are hitting someone with a golf ball or a club intentionally, you have a problem. You pretty much get that one free bite, but if you have a second incident, you are looking at some institutional liability.

This also bridges us over to the area of Title IX that prohibits sex discrimination at colleges and universities receiving financial assistance. There was a very recent case just decided by the U.S. Supreme Court, Davis vs. Monroe County Board of Education. This dealt with the elementary school and it dealt with peer-on-peer sexual harassment. This is a very difficult area with college-age students. There is going to be the natural dating, flirting and everything that goes on with college students. You need to know what your institution's policy is on sexual discrimination and sexual harassment and who are the individuals who are charged by the university with investigating claims. How do you get the word out that you prohibit this type of behavior and here's the process you use if you've been discriminated against? The standard the court adopted for institutional liability is that the institution had to have a reckless indifference to the fact of the sexual harassment occurring. Once someone in a position of responsibility has notice, get it to your investigator. At ASU, it's the judicial officer in the student life department. For employees, it's our equal opportunity affirmative action office. We have limited who has authority to investigate at our institution to make sure it's done right. We heavily publicize our policies. The recent case that Virginia Tech had a few years ago, where two football players were accused of raping a freshman female student makes extremely interesting reading. It is the plaintiff's versus of what happened. The court did not paint a very favorable picture of the institutional response. It painted a very bad picture saying it was an institution protecting it's athletes to the detriment of the female student and an institution that was not applying it's policies fairly and even-handedly. Again, it was the plaintiff's version of the facts, but it was troubling to read and it was not how you would want to see a situation handled at your own institution. You have to have people believe the system works.

Please be careful at promising confidentiality to students who come to you. Don't do it, but if you do, please call your in-house counsel or whoever your liaison is to get to the lawyers. We need to know about it and we need to counsel the administrator on how to deal with the situation. A student who comes to you and has been a victim and says, "I was sexually harassed, but don't do anything about it," may have that right to not want to pursue it, but again, it opens up the trouble of what do you do for the next victim. If you don't deal with a situation at the front end and there are further problems after that, you have opened up very significant institutional liability. Please be sensitive to that particular area.

The one other amendment that the Higher Education Act adopted that you need to be aware of is that it has expanded the provisions that you cannot release personal information about your students absent their consent. The new law now makes it permissible for an institution to reveal the outcome, the final results of student disciplinary hearings. They also make it permissible for the institution to involve parents or the legal guardians in situations involving alcohol. You need to determine what your institutional response is going to be to this new legislation. You no longer have the ability to say to the reporter, "I'd like to help you out, Joe, but by law, I can't disclose it." You now have to determine what is the institutional policy on disclosing information. If you can do it, you may find it's expedient in some circumstances, but if you're going to do it, you have to treat all students similarly. You may have your own internal debate going on at the institution on how best to handle it.

Those are the primary litigation issues that come out. At ASU, we have extremely small amounts of litigation involving student discipline. When a court is going to review a challenge, in Arizona, they're looking at, did you follow your policies, and did you follow your procedures? If you have, a court is not going to play a second-guessed on the substantive decision the institution reaches. The court is going to uphold it. If you have not followed procedures, the student has not had that fair hearing, the court is always going to find for the student and you're going to have to go back and do it again.

If you get into a situation, bring in the team you have designated within your institution so you know which policies you're applying and which procedures have to be met, recognizing they may be different given different policies. Do it right and your decision will stick and you will gain the benefit of deterrence, hopefully, with your other student-athletes. Thank you.

Judi Henry:

I'd like to thank C.M., Cindy and Derita for their comments. They've been informative and probably raised a lot of questions in addition to ones that were already there.

Diane Wendt:

My name is Diane Wendt from the University of Denver. I wanted to ask C.M. Newton if he would share a little bit of the dialogue, the philosophical grounding and the responses to the zero tolerance policy.

C.M. Newton:

With this, there was a continuing dialogue with our student-athletes and our coaches and administration over the years. The zero tolerance entered into it as a result, frankly, of us just saying, enough is enough. We did this through our Student-Athlete Advisory Committee and others. The response to it from our student-athletes' standpoint was one that was overwhelmingly supportive, some felt we went too far, but realized something needed to be done. The reason was that the amount of education we had done to that point related to alcohol. We told them the anticipated outcomes, hopefully, would be that we would have an attack at the underage drinking problem and have a decreased consumption of alcohol by some student-athletes. Those of age, we just asked them to drink responsibly. We didn't attack it from a moral standpoint or anything else. We just said we've got a problem. If you choose to drink, we're telling you to drink responsibly if you're of age. If you're not of age, we're going to enforce the law.

We then went to the next step with the DUI, hopefully, to get teammates to intervene. What concerned me about the Jason Watts incident was there were others teammates that were going to go hunting with him who chose not to go because they didn't want to ride with him? The two young men who went with him had high levels of alcohol. There were youngsters who chose not to get in that truck with him and go deer hunting.

Our hope in dealing with this was that somebody needs to stand up and be counted and to intervene. In the instance of the DUI that occurred later with the women's soccer player, we did have that actually occur where one of the students told us of the problem, but it was after the fact. They tried to intervene at the time. I doubt if that answers your question.

As far as the public response, it was all over the spectrum. We had some that said we're going way too far and violating their rights. We had others who said get on with it. Again, I decided it was the right thing for us to do and we frankly didn't care too much what the public had to say about it.

Ted Kissell:

Ted Kissell from the University of Dayton. I'd like to direct my question to Ms. Ratcliffe, but would welcome other responses from the panelists. One thing it seems that all athletics directors agree on is that our jobs have become increasingly complex. We are constantly asked to take upon new roles. If I'm interpreting what you handed out correctly, you basically are asking the athletics director to take on the role of dean of student-athletes. That's how I'm reading it. If you would speak to us about the interplay between the vice president for student development or the dean of students and the athletics director who is being asked to take on this role.

The second part of my question is that it seems there is a lot of power there for the athletics director in this role. Does the dean of students have similar power?

Derita Ratcliffe:

On our campus, it works well because with the sanctions part of this document, we're talking about criminal offenses. We're not talking about residential life or judicial review kinds of things that the dean of students' office handles. On our campus, there was no campus-based response to criminal actions for student-athletes or any student unless it occurred on campus. A Virginia Tech student who is arrested for assault and convicted of assault but receives a suspended sentence, continues to be enrolled at Virginia Tech.

In response to that with the media attention and just the fact that we look at participation in athletics as a privilege, not a right, we've said we're not going to let that continue with student-athletes and here's what we're going to do. Again, the committee that put this document together was across the university.

Before it was given to our Board of Visitors, it was distributed to our University Athletics Committee on which the dean of students sits. It went through his review, as well. It went through people on the faculty senate. It is something that, across the board, the university agrees on. After it was adopted by our Board of Visitors, the athletics director, myself, the provost and her assistant all sat down and discussed, given what's in this document, who's going to do what, how are we going to make sure we don't overlap efforts to address things. It's something all of the constituent bodies, if you will, work together to make sure that things were followed.

Ted Kissell:

Would I be right in assuming that if it occurs on campus, the student-athletes remains additionally accountable to the student judicial process? If there's criminal charges, that would be a third level of accountability. The athletics director can act much more quickly than either of the other two. That's part of the value, true?

Derita Ratcliffe:

Yes.

Cindy Jewett:

I'd like to comment that you raised a valid concern, but at my institution, our Student Code of Conduct generally does not extend to behavior off-campus. It is really focused on what's going on on-campus. Our institution adopted the Conduct Policy for it's student-athletes and it's very comprehensive. It includes no restriction on geography. In fact, if you're convicted in another state, we have provisions for that. It's broader in that it also includes a provision that if something happens after the individual has signed a national letter of intent, we can assert jurisdiction under this policy which is not anything we'd be able to do under our Student Code of Conduct.

It's important when you draft a policy to look at what are the unique circumstance athletics faces that the general student population may not and that the dean of students may not be as concerned over. Secondly, it allows athletics to retain control over the process with an advisory panel that has campus-wide representation, but you are, in fact, able to say you're in a better position to judge what's going on in our department. The third benefit is that it does make the athletics director the "heavy" so to speak, but it's a very good benefit to not put that burden on the coach. You want to give the student the right to defend themselves and if there is a mistake in information, inappropriate charge, you do not want to have a damaged relationship with that coach that could have been avoided.

There are some distinct benefits to looking at a department policy.

Derita Ratcliffe:

One additional comment, having been a dean of students, that was a good question and a very good observation of relationships between athletics departments and dean of student departments vary from campus to campus. It just points out the importance of that communication, not only with the dean of students and student affairs, but police departments and the institutional-wide response.

Marcia Saneholtz:

I'm Marcia Saneholtz from Washington State University. I have a question for Cindy. When you talked about not promising confidentiality and if you do, be sure you let the university counsel know. What if you are in a situation where you have psychologists on your athletics staff and you're dealing with the counselor/client privilege and confidentiality, so this person is privy to a lot of information that would be helpful in avoiding situations we're talking about, but we don't get the information because of the confidentiality that's afforded the client. How can we appropriately address that situation?

Cindy Jewett:

That's an excellent question. It's an exception, I will say, that it is of paramount importance when you have psychologists on staff whether in the athletics department or at the university. If a student is consulting that individual for counseling for the professionalism that individual has, that counselor needs to adhere to their professional ethics. They cannot disclose that to the athletics department or to general counsel.

Ideally, the counselor in that circumstance works with the student who has revealed the information to help them understand what all of their options are and that they can go to the police. They can go to the Equal Opportunity Affirmative Action Office. They can go to the dean of student life. Each "victim" or each person has to make their own decision on their own timetable of what they're going to do and what's best for them. They can work that through the counselor.

At our institution, we do not have a psychologist on staff for counseling students about personal problems, but we have a counseling and consolation office in the student affairs segment of the university. There are instances where student-athletes go to that unit and reveal things that cannot be revealed to the athletics department. It's awkward, but from an institutional standpoint, we think it's far more important to preserve the benefit of the therapeutic relationship.

Derita Ratcliffe:

Let me also add, having gone through a clinical site program, that a psychologist is going to tell a client he won't reveal unless I find that you are intending to hurt yourself or someone else. In terms of a violent offense or a potential violent offense, the psychologist can disclose that information.

Kathleen Hessert:

I'm Kathleen Hessert from Sports Media Challenge. There are two areas I'd like to get some clarity on. You talk about making the AD the heavy and not putting the coach in that position. The front line person who has to deal with the situation, especially when you're on the road and something occurs on the road, is the coach or coaches who are there, do you have, within your guidelines, within crisis planning documents, procedures on how coaches on the road must step-by-step handle appropriately the procedures of dealing with situations when the AD is not in the next room?

Number two, in terms of the gap of time between the court of public opinion and the court of law, if you haven't been able to clearly decide whether it happened or didn't happen and you can't make some kind of judgement, does the suspension just stay in place? When the court of law decides this person is acquitted, what is the risk-tolerance for lawsuits, etc., that your institution has decided to take? For instance, if an athlete is prohibited from playing the rest of the season, therefore jeopardizes their pro relationships or their Olympic competition, there is a big gap there.

Derita Ratcliffe:

First, if a coach is on the road with his or her team, the coach has team rules. Ideally, the team rules have anticipated that there could some instances of misconduct. The coach is going to have absolute authority to implement his or her team rules. In reality, voice mail, home phone numbers, there would be communication up the chain to either the director of athletics or the associate director of athletics that generally handles the student discipline code. There would be internal communication. It would be the determination of the department to decide how much further institutionally that information needed to travel. We have a practice with our campus police, if something happens on the weekend with the student-athlete, the police are on the phone with a group of people so that they're not reading about it in the paper Monday morning for the first time.

The coach needs to exercise professional judgement on how to handle a situation. When you're considering making a decision in a short period of time, no one expects people to be perfect. You want them to make a reasonable decision based on the information they have at the time.

In terms of the second part of your question. The point to make is that we have an obligation to act as promptly as we can in administering our administrative policies. Most policies provide for very short timeframes, within five days, for example, a student has to request an appeal. With five days we have to hear it and make decisions. Sometimes our timelines are unreasonably short to really make a decision. Obviously, you always want to have the latitude to extend them where a good cause exists to get more information or to give a student a chance to get some advice.

The key point you go to, what if the student is acquitted? They've been deprived a professional career? From a cold, legal analysis, criminal charges operate on their own laws and procedures and their own burden of proof. It's very possible a student may not be convicted or it's possible that a student may plea-bargain a situation down to a misdemeanor. They may get only a suspended sentence or probation. The rules of criminal justice are very strange to us. Things happen that you wouldn't expect.

Having said that, the right to play intercollegiate sports is not a right. It is a privilege. Our federal court is quite clear on that it is a privilege. That takes us back to, do you have reasonably drawn administrative rules and policies? If you do and if you administer them as they are written and reach a fair conclusion based on the information you have, you're entitled to do so. If there is a consequence to the student-athlete, that's life. It's not a protectable interest that they can go to court and win on. Will they take us to court? Sure. We will most likely have a very strong defense to it.

C.M. Newton:

I will tell you about our one instance we've had. Frankly, I was a little shocked that we had the instance after the trauma we'd gone through with the tragedy and the attention we'd given to it. It shows the disease aspect of alcoholism. The young woman involved refused the test at the site. If the test is administered, you have some pretty strong evidence. The courts have upheld what legal intoxication is. She refused. There were four young women in the car with her. Our compliance director organized a group involving that person's coach. I feel the coach needs to be involved at the beginning. Some of you may disagree with that. We got great cooperation between our university police and the Mexican police. They immediately investigated. Part of their investigation was to talk to the arresting officer. They talked to the four young women who were in the car with her. She claimed she wasn't drinking. It turned out she had been. We went on with it and took it from a temporary suspension and made it permanent, with the right to appeal. There was no appeal.

Had we had the situation like you're talking about where there was reasonable doubt and I can see that happening, I'm not sure what we would do at that point, but I think we would depend on legal counsel to advise us. I hope we don't face that.

Derita Ratcliffe:

In terms of our process, the athletics director initiates the review. That's not to say the coach has no involvement. If it occurs on the road again, the team rules are the first law, if you will, and the coach has the associate AD's phone number with them. It is documented that you made the initial contact and the athletics director takes it up from there. We feel that's important for this issue of continuity. Team rules differ. You put yourself in that situation by deciding to be a member of that team. In terms of this document, it can only be initiated by the athletics director.

Cindy Jewett:

Think about the mode of communication you want to use when you're talking about a situation that happened and you're trying to figure out what to do about it. It may be that a phone call is correct. It may be that a face-to-face is okay, or it may be that voice mail is okay. The minute you send something by E-mail and you're talking about a student, it's personally identifiable information and that student has the right to access that e-mail. You need to be aware that convenience is a great thing, but it can blow up under your feet. Sometimes people are very candid in what they write in e-mail. Be mindful that when it happens, how do I communicate it. If I'm going to put it in writing, think about what you're writing and don't just dash off the note. It could come back to haunt you.

Ken Kavanagh:

My question is for C.M. For consistency purposes and based on a personnel standpoint, how do you handle your zero tolerance policy for your staff members? Is it something you already have in a general contract? If you had a situation with a DUI on a student-athlete on scholarship versus a staff member?

C.M. Newton:

The same. The only other difference would be that we would just fire him.

Kathy Beauregard:

Kathy Beauregard from Western Michigan University. I basically have more of a comment than a question. We ran into a situation this year that we do have a very aggressive plan in place, similar to Virginia Tech. I serve in the same capacity and work very closely with our vice president of student affairs and dean of students. We did have a situation that challenged us this year. It involved hazing in a program. I just want to mention to all of you in this room that it's something that opened my eyes up. Our ice hockey program chose to haze which has been something that happens in that program since they were 10 years old. When we went back to our student body and talked to all of the coaches and the student-athletes about hazing, we found out about goofy things from dressing up funny on campus versus true incidents that didn't cause deaths. There were some arrests and other situations. Did the coach know? Did the coach know, but look the other way? These have challenged us to look more at our student-athletes' handbook regarding hazing. I would hope that everyone would take a look at that.

Judi Henry:

That's a very good point and we could talk about this for several additional hours. I would like to thank you for your interest in this session and your attention. I would like to thank the panelists. It was a privilege for me to moderate.