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Does Baylor deserve to remain in the Big 12?

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Multiple investigations continue into various aspects of the ongoing scandal at the university, but there are also signs that change is happening, even at the highest levels.

Northwestern State v Baylor Photo by Ronald Martinez/Getty Images

With second-year head coach Matt Rhule in charge of the Baylor Bears football program, there haven’t been any tone-deaf comments on the level of former interim coach Jim Grobe and the football program overall hasn’t dealt with any significant new scandals since an assistant strength and conditioning coach was fired for soliciting a prostitute in early 2017.

However, the cloud of scandal left over from the Kenneth Starr/Ian McCaw/Art Briles era continues to draw headlines and raise the question of whether the university deserves to remain a member of the Big 12 Conference.

There are still multiple levels of exposure for a university now embroiled in that scandal for more than three years as the Department of Education conducts investigations into Title IX compliance and crime reporting compliance, the Texas Rangers investigate sexual assaults on campus, the NCAA readies to hand down a finding of a “lack of institutional control,” and the Big 12 withholds 25 percent of revenue distribution payments as a third party conducts a verification review of necessary changes.

Let’s deal first with the membership question.

According to a July report, Texas officials wanted Baylor out of the conference two years ago, with officials in Waco also expressing worry about that possibility.

Here’s the relevant section of the league bylaws is 1.3.2, which regards institutional control and could result in the removal of Baylor from the conference:

“Each Member accepts the primary responsibility for the administration of rules and regulations, for investigating known or alleged violations at that institution, and for taking prompt and effective corrective actions where violations have occurred.”

Considering that the 2016 report compiled by the Philadelphia law firm Pepper Hamilton described “institutional failures at every level” and the NCAA reportedly notified the university of pending allegations against the school, including “a lack of institutional control,” there are now multiple judgments from independent parties that come to that conclusion.

Since the Bears still have more than 80 days to respond to the allegations, and the NCAA could take up to 60 days to send its own response, the outcome on the NCAA level could take another half year to resolve itself. In terms of the timetables for the other investigations, it’s even more difficult to conduct any educated speculation on when there might be full resolution.

Regardless of when the true reckoning happens, the reform of many levels of the university was not only necessary, but also overdue, extending especially to the highest level — the massive, unwieldy Board of Regents at Baylor.

Public institutions like the University of Texas and Texas A&M operate within a different set of rules imposed by the transparency requirements made of such schools. Private schools operate outside of those restraints beyond the Title IX requirements created by the acceptance of federal grants.

So where there is transparency and accountability for public schools, there is much more leeway for and room for malfeasance by private institutions, even if those public and private schools belong to the same conference.

The lack of amnesty clauses for survivors of domestic violence and sexual assault when under the influence of drugs or alcohol in violation of student honor codes enforced by private institutions is and was one such example. To Baylor’s credit, the school now has such a clause, as does BYU. Across private religious institutions, it’s a proliferating trend pushed by progressive forces.

However, some of the differences between public and private universities still play out at the highest levels.

Texas has a nine-member Board of Regents who receive their appointments from the governor and confirmation from the state Senate. As many Longhorns fans may remember, that structure can impose some unfortunate realities, like a conservative Aggies graduate as governor appointing sycophantic members to undermine the institution’s true purpose, backed by a similarly conservative Senate. However, there’s also a public level of accountability there.

In the case of Baylor, the structuring of the highest level of power falls to private hands. A rather large, unwieldy body, featuring 32 voting members, the Baylor Board of Regents includes 75 percent of the membership elected by the Regents and 25 percent elected by the Baptist General Convention of Texas. Also, due to the reforms from 2016, three Regents elected by alumni joined the board.

Other reforms now exist, too, including the establishment of a point of contact between the Board of Regents and university leadership, protocols for communication between the board and university staff, and a commitment to improving diversity on the board.

The university now has its first female president, and there are 11 women on the board, including one African-American woman. Overall diversity at the school is actually above the national average in regards to the student population, but more than 64 percent of students are white and the faculty skews further in that direction, as nearly 84 percent are white.

Developing a faculty and Board of Regents that look more like the actual student population will be a continued work in progress for Baylor.

If the Board of Regents is going to remain such a large group, having better representation of the actual stakeholders at the school is a positive step, but issues of reform also necessarily required a restructuring of how those members communicate with members of the athletic department, especially. Or don’t communicate with those people.

To that end, new contracts for coaches require them to “refrain from contacting directly or indirectly any officer, except the AD, or Regent of Baylor about items relating to the administration of [sport], administration of Baylor’s athletic program, or this contract or other matters related to [coach’s] employment at Baylor.”

Basically, don’t call the fixers on the Board of Regents to cover up instances of sexual assault committed by athletes to then set in motion the chain of events that often, in the past, led to survivors never receiving anything approaching justice or compliance with federal standards imposed by Title IX.

There have also been some apparent good-faith efforts at providing oversight of the Board of Regents. A Governance Review Task Force with a 50/50 split between regents and non-regents now exists and produced a 30-page report less than two years ago that resulted in new governance reforms.

Some of the changes are no doubt the result of pushes by the Bears for Leadership Reform, a group that includes billionaire regent emeritus Drayton McClane, former head football coach Grant Teaff, and major donor Nell Hawkins. Change and transparency were two large initiatives undertaken by that group.

“Ultimately, this plan is trying to help rebuild some of that trust with the Baylor family,” said Randy Ferguson, a Bears for Leadership Reform board member and former regent. “Clearly, one of the things that will (rebuild trust) would be to have some other additional faces or newer faces on that board.”

So, there are signs that the 105 recommendations made by Pepper Hamilton and adopted by the university have resulted in positive changes at Baylor.

There’s also a lot of continued exposure due to the lawsuits and investigations that are still ongoing, including the third-party review commissioned by the Big 12 and looming NCAA infractions.

Institutionally, the NCAA seems unlikely to hand down the death penalty for a sixth time and the Big 12 seems equally unlikely to make the politically difficult though perhaps justified decision of ejecting Baylor.

Plenty can happen between now and the conclusion of all these investigations, but right now, there’s no concrete cause to believe that the reforms are failing in significant ways. Until that apparent reality alters itself due to investigative results or new issues, the Bears will likely remain in the Big 12, and that might even be a reasonably fair result, even if it understandably doesn’t provide any consolation for the survivors of assault left in the wake of this scandal.

Therein lies the difficulty in adjudicating these scandals — do future students and student-athletes need to suffer serious consequences imposed by the malfeasance of previous university leadership? What does it look like to equitably address the incredible trauma and life-altering experiences suffered by the survivors of assault? How do those concerns reconcile with athletic affiliation?

The question of whether Baylor will remain in the Big 12 and deserves to do so will come down to the results of these debates at the federal, national, conference, and institutional levels.

Ultimately, though, none of the answers will be easy, especially for the survivors whose trauma led to this scandal in the first place.