Northwestern University Doubles Down on Sleazy Athletics Deals

 NU to Promote Guy Charged With Cover-up and Files Motion to Dismiss Trafficking Complaint

A few months ago a former Northwestern University cheerleader sued NU, alleging violations of Title IX and the Trafficking Victims Protection Reauthorization Act (TVPRA).  On April 30, 2021, NU submitted its memorandum on behalf of a motion to dismiss.  

NU's brief is not answering the charges but arguing that Hayden Richardson's complaint is legally deficient, i.e., that even if everything she claimed were factually accurate, NU has violated no laws.  One argument is that the complaint is not sufficiently specific about the mechanisms of inducing payments to NU in exchange for the pimping of its students:

Plaintiff does not allege anything of value was given or received on account of the fans’ alleged inappropriate touching of the cheerleaders. The Complaint is devoid of any allegations that donations were, in fact, exchanged, and Plaintiff does not (and cannot) allege that any other thing of value was given or received as a result of the inappropriate behavior. Rather, Plaintiff alleges she was touched or groped by fans at tailgating events and by patrons at a bar (who may or may not even be affiliated with Northwestern in any way). (Compl. ¶¶ 59, 68, 77–78.) Plaintiff does not assert that Northwestern received an alumni donation or grant, much less that any Defendant received any benefit of any kind, because fans and bar patrons groped Plaintiff.

NU argues further that when Congress passed the TVPRA it had in mind contexts closer to sex slaves than college students' scholarships: 

Congress intended the threat of harm to be serious, involving cases “where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence.” [Citations omitted]

NU in addition cites to case law in which judges have succumbed to the branding of nonprofit universities and afforded these high status institutions deference less likely to be available if places like NU and other members of the National Association of College and University Attorneys pursued these actions on behalf of their true masters: the titans of firms like Abbott Laboratories, Boeing, General Dynamics, General Electric and Halliburton whose past and current officials run NU.

Analysis of parts of NU's Motion to Dismiss
I'm posting about this particular complaint on the States Without Nations blog because as the founding director of the Deportation Research Clinic, I have closely followed class action employment litigation against private prisons that have proceeded under the same law Richardson is using to sue NU. Indeed Clinic research has been credited with initiating the litigation.  So I know that judges apppointed by Republicans and Democrats alike have denied motions to dismiss forced labor claims based on imputations of legislative intent.  

Relying on the letter of the law, federal judges and appellate courts in Colorado, Washington, Georgia, California, and Texas have told GEO and CoreCivic that even if Congress did not specifically envision people detained under immigration laws suing the firms for fraudulently or psychologically coercing them to work, these firms were indeed covered by 18 U.S. Code § 1589 and would need to answer complaints thus charging them. Indeed, writing for the Fifth Circuit Appellate Court, James C. Ho, a Trump appointee, wrote:

Judges are not legislators. Legislators write laws—judges faithfully interpret them. So if a party wishes to have its activities exempted from a statute, it must ask the Legislature to enact such an exemption, not the judiciary.  [Feb. 18, 2021, p. 1; orders from other cases here.]

In other words, even if Congress in 2000 or 2008 when it reauthorized the TVPA did not envision it would be prohibiting a university from forcing students to sexually arouse potential donors for purposes of fundraising, such programs or policies would violate the law.

I'm not going into the weeds of the NU brief, but I do want to flag one especially slimy aspect of NU activities obscured by the NU response: the conflation of its pseudo-investigative Office of Equity activities with a bona fide campus watchdog office. The NU memorandum fails to acknowledge the extent to which NU's investigative activities on and off campus are weaponized operations that are used either to target critics or catch-and-kill complaints highlighting improper or unlawful conduct.  

Insofar as Richardson alleged the latter, she was not claiming NU made a rational choice of a range of investigative procedures, as NU avers in its motion to dismiss.  She claimed something far more sinister:

8. It further became evident to Plaintiff that Northwestern’s commitment to supporting victims was a façade to conceal a much uglier reality – Northwestern was willing to silence, and sacrifice the well-being of, its female athletes in order to keep its donors happy.  Refusing to be silenced, Plaintiff obtained numerous statements from her teammates, all saying the same thing – that they were forced to subject themselves to continuing sexual exploitation, assault and harassment, as encouraged and condoned by Bonnevier. With indisputable evidence, Plaintiff went back to Obering to prove her case and request a formal investigation by the Title IX office. Obering and Defendant Polisky then accused her of fabricating the evidence.
9. Even when presented with this evidence, Defendants continued to shame and discredit Plaintiff and obstruct the commencement of a formal investigation. Once the Title IX office was made aware of the hostile environment created by the University’s exploitative fundraising strategy, it continued the cover up by refusing to undertake a formal investigation as requested by Plaintiff.
10. Instead, the Title IX Office acted in violation of the University’s Title IX policy by opting for an under-the-radar, informal “educational training” for Bonnevier. Clearly any negative publicity about the sexual harassment, assault and exploitation of female cheerleaders would have impacted the University’s fundraising efforts.
11. After Bonnevier’s training, the Athletic Department told Bonnevier that she could not force the cheerleaders to attend tailgates. This had little impact, as the cheerleaders were still required to attend fundraising events, which were the primary source of Plaintiff’s Title IX complaint. In any event, Bonnevier threatened the cheerleaders, telling them that if they did not tailgate they would not eat. Defendants again attempted to make the appearance that they were implementing measures to remedy the situation while knowingly subjecting Plaintiff to ongoing harassment to protect a significant source of donations from alumni.
12. Plaintiff complied and did as she was told for the season, but again asked for help from the Title IX office because the sexual harassment continued. Knowing that they could not undergo another informal education for Bonnevier without upsetting Plaintiff and risking her speaking out on the matter, Defendant DaSilva agreed to commence a formal investigation.
13. However, Defendant DaSilva stripped Plaintiff of her status, rights, and accommodations as a Title IX complainant when DaSilva relegated Plaintiff to witness status. DaSilva gave the appearance that she was going to protect Plaintiff and preserve her anonymity. Not knowing exactly what that entailed, Plaintiff was grateful and agreed. However, when Plaintiff inquired as to the status of the investigation, she was informed that, because she wished to remain anonymous, DaSilva had permanently changed her status to a witness in the matter and she therefore was not entitled to receive information about the investigation or its outcome.
14. As a result of being relegated to witness status, Plaintiff was precluded from knowing the investigative findings or the steps the University was taking to address the matter.  The University was able to keep the investigation under wraps and preserve its false reputation as committed to preventing sexual harassment. Clearly the same commitment continued to be inapplicable to female athletes the University wished to exploit for financial gain.

NU's memorandum on behalf of a motion to dismiss was filed on April 30, 2021.Yesterday, outgoing President Morton Schapiro defended his selection of one of the defendants, Mike Polisky, as the next Athletic Director.  Today, there is a rally to protest this. And also a petition.