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Discretionary Discipline

February 8, 2013

Last month, the women’s track and field coach Bev Kearney was forced out of her 20-year-long job at the University of Texas at Austin, two months after she admitted to having had a relationship with an athlete on her team in 2002.

Days later, the university -- staring down a potential lawsuit by Kearney, USA Today reported -- announced that an assistant football coach, Major Applewhite, had faced an 11-month salary freeze and mandated counseling after revealing he had a one-night-stand with a student athletic trainer four years ago.

Kearney is a black lesbian who was due for a pay raise and contract extension before admitting her indiscretion in November. Applewhite is a white, heterosexual former Texas quarterback who has been promoted and whose salary has more than doubled since the freeze lifted.

The juxtaposition of the two cases of coach-student affairs has raised questions of fairness, discrimination and policy, not even a year after the NCAA released a report urging colleges to codify rules prohibiting relationships between coaches and athletes.

“They’re both doing roughly the same behavior, and they’re getting very different punishment,” said Nancy Hogshead-Makar, a law professor at Florida Coastal School of Law and senior director of advocacy for the Women’s Sports Foundation. “Gay and lesbian coaches in particular suffer far harsher consequences for having relationships with athletes.”

The University of Texas System’s Board of Regents met last weekend to discuss the issue of staff-student relationships. The board announced afterward that it would create a task force to review “policies concerning disciplinary actions and procedures,” but took no immediate action. The board declined to comment.

After Kearney resigned but before Applewhite was exposed, Kearney’s lawyer suggested she was treated unfairly.

“We believe that Ms. Kearney has been subjected to a double standard and has received far harsher punishment than that being given to her male counterparts who have engaged in similar conduct,” Kearney’s lawyer, Derek A. Howard, told the Austin American-Statesman. (Howard did not respond to request for comment.)

Kearney, an inductee of the International Women’s Sports Hall of Fame who led her team to six national track and field championships, had a base salary of $270,000 and had been recommended for a $127,000 raise when she was put on leave in November, the Associated Press reported.

Applewhite, who made $260,500 as a running backs coach in 2009, was bringing in $575,000 in guaranteed compensation last year as co-offensive coordinator.

Because of Applewhite’s salary and stature in a revenue-generating sport, “The school has a lot more on the line by firing a football coach than they do a track coach, and it’s much easier to have a situation like that where you can kind of sweep it under the rug,” said Jason Belzer, an adjunct lecturer in organizational behavior at Rutgers University who is founder and president of Global Athlete Management Enterprises, which specializes in career management and marketing of coaches. “Not only is there a double standard, but they kind of shot themselves in the foot by trying to cover their tracks.”

Announcing Applewhite’s indiscretions is a clear response to Kearney’s firing, Belzer said, but if Texas was serious about enforcing its rules, Applewhite should have been fired as well.

The Texas athletics department said it would not comment publicly on the cases. But in a statement after the news about Applewhite broke, Athletics Director DeLoss Dodds defended his treatment of Applewhite (without mentioning Kearney).

“In determining appropriate discipline, we analyze the facts and circumstances surrounding the behavior and its relation to job responsibilities,” Dodds said. “We have high standards for behavior and expect our staff and coaches to adhere to them in all aspects of their lives. I believe that the appropriate discipline was taken in this case.”

University policy does not explicitly prohibit consensual relationships between students and staff, but “strongly discourages” them, and the athletics department does not have its own policy. The policy does require, though, that staff who do have relationships with students report them to a supervisor.

A National Collegiate Athletic Association report published last year strongly urged all programs to implement such a policy -- even including a model draft -- that would prohibit such relationships and lay out explicit consequences for rules violators. While the report did not address coach-student staff relationships, which would more closely apply to Applewhite's case, it did condone university policies prohibiting staff-student relationships, saying that such policies are even more important in athletic departments because of the coach-athlete power dynamic. Asked whether that dynamic exists between a coach and an athletic trainer, sources told Inside Higher Ed that while it's not as extreme, the coach still holds power over the student -- in employment, status and age.

That report states that “sexual relationships between coaches and student-athletes have become a  serious problem,” noting that even if they are consensual, they are inherently abusive because the coach or staff member holds implicit power over the athlete.

Deborah L. Brake, a co-author of the report and University of Pittsburgh law professor, said the situation at Texas is “the perfect example” of why institutions need these written policies in place.

“Without them, you’re going to have ad hoc responses. And once you have ad hoc responses, you’re going to have inconsistencies – and that’s bad for everyone, including the institution, which could open itself up to litigation,” Brake said.

Hogshead-Makar said Texas could be held liable under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex, and also under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race or religion.

Brake declined to comment specifically on the variability in punishments of the Texas coaches, but said of such discrepancies in general, “It’s entirely unsurprising that that would be the case, unless there are clear, written policies.”

Judy Sweet, co-director of the Alliance of Women Coaches, said “there does appear to be an inconsistency or double standard,” while acknowledging that information about the cases is limited.

“Since personnel issues are usually confidential, it would be difficult to know if such situations are prevalent,” Sweet said in an e-mail. “I hope that Texas will not only evaluate policies but also how policies have been applied.”

Belzer said it’s incredibly rare for athletic departments -- and the universities that house them -- to prohibit adult/student relationships, both because of tenure and because trying to regulate a relationship between consenting adults is tricky business. Thus, Belzer pointed out another double standard: professors who have relationships with students might not be punished, but athletics staff are.

While it’s difficult, if not impossible, to track how often these relationships occur and what happens when they are found out, Hogshead-Makar said that because of the hyper-masculine culture of athletic departments – the leaders of Football Bowl Subdivision teams, athletic departments and institutions are overwhelmingly white and male  -- homosexual coaches are typically fired and unemployable, while heterosexual male coaches may be fired, but go on to be employed somewhere else. (Take Western Kentucky University’s recent hiring of the former University of Arkansas football coach Bobby Petrino, who was fired in December after crashing his motorcycle with his girlfriend, a former volleyball player whom he hired as a football assistant.)

“Almost all schools have very good protections for gays and lesbians, both the students and the professors, and the staff,” Hogshead-Makar said. “The athletic department, which seems to enforce heterosexual norms, can’t be exempt from those policies.”

In November, students accused Virginia Commonwealth University of firing its women’s volleyball coach because he was gay. In 2008, two former Mesa College athletic department employees sued the institution for the same reason.

The NCAA says 10 athletic programs have formally responded to the report on athlete-coach relationships, and are discussing ways to move forward with their own policies. But Belzer, for one doesn’t expect much change on the horizon, because for the handful of people in a university compliance office “this is probably the least of their worries.”

“We’re probably going to see this happen in the future,” Belzer said. “The schools aren’t going to know what to do because there wasn’t anything in place.”

 

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