Included in Discovery: Atlantic Education & the Law – Issue 08

Clarence Bennett

It is increasingly difficult to reconcile the rights of a student charged with sexual assault, with the rights of the victim, along with the university’s responsibility to ensure the campus is safe and free of sexual violence. While a student is innocent until proven guilty, universities have an obligation to keep students safe and make them feel safe. It can be difficult to manage the public relations fallout when pressure mounts from social media and other sources to act quickly and publicly. It no longer matters how well a situation is being handled, as universities are being pressured more and more to publicize their actions and process. On this backdrop, Administrative and Supervisory  Personnel Association v  University of Saskatchewan,  2020 CanLII 49268 (SK LA), a decision out of the University of Saskatchewan (“U of S”), should be a cautionary tale.

Background to the grievance and media reports

In May 2018, a number of media outlets reported that a U of S student had pleaded guilty to a charge of sexually assaulting a woman at a Medicine Hat College residence and was sentenced to two years in prison with three years’ probation. The student was a member of the U of S men’s volleyball team, having transferred to the University after he left Medicine Hat College after being charged in 2016.

This student was recruited by the head volleyball coach at U of S who, in response to the media storm, conceded that he was aware of the charges. He was quoted in the media stating that they, “had talked briefly about the situation” but, “didn’t go into a lot of detail”. He also stated as follows:

He made a very bad choice and decision with his actions and what he did for one night. And it’s cost him dearly. It’s obviously cost the victim — please don’t get me wrong; I’m not being flippant about that situation, but I think people who are in my position have to do everything they can to give young adults and teenagers an opportunity to grow and develop and improve on their character and improve on their choices and improve on their lifestyles, whatever the case is.

U of S held a meeting with the coach immediately in which he acknowledged that he knew about the sexual assault charges when the student joined the volleyball team in 2016. He also acknowledged that he had not spoken to any of his supervisors specifically about the criminal charges.

Ultimately, the University decided to dismiss the coach after 26 years of service with positive performance reviews and a clean disciplinary record. The termination letter cited, “poor judgment” and “safety and reputational risks to other student-athletes, Huskie Athletics and the University as a whole.” The coach later testified at arbitration that he assumed that the University had been made aware of the sexual assault charges through the vetting process for the student’s transfer from Medicine Hat College to U of S.

On the same day as the termination, the U of S issued a media statement, which was widely reported. In addition, the Province’s Status for Women Minister publicly condemned the coach’s earlier comments as disturbing because they trivialized what happened to the victim and overstated the impact on the student athlete.

The U of S did not have any policy relating to the recruitment of student athletes on its athletic teams or prohibiting head coaches from recruiting athletes charged with, or convicted of, a serious criminal offence. Nor was there any policy for head coaches to follow when speaking with the media. All student athletes were subject to an Athlete Code of Conduct, which required student athletes to conduct themselves “in a manner in which [their] behavio[u]r will not be considered a form of harassment”. The University also had a general Sexual Assault Policy aimed at preventing sexual assaults on campus and raising awareness of incidents of sexual assault or sexual misconduct.

Arguments at arbitration

At arbitration, the union argued that the University could not establish any policy or expectation that was breached in failing to disclose the sexual assault charges, recruiting the student, or speaking to the media. They further submitted that the grievor had simply committed an error in judgment and that the U of S had “panicked” and treated him as a “scapegoat.”

The U of S argued that the grievor had breached his employment duties by failing to exercise good judgment when recruiting the student and providing comments to the media without having cleared the comments through the appropriate personnel; failing to notify the University of the criminal charges in breach of his duty of fidelity to the University; and placing his own and the student athlete’s interests above the interests of the University by failing to consider or mitigate the potential safety and reputational risks to other student athletes, Huskie Athletics, and the University. It also maintained that permitting the student to play on the volleyball team constituted a breach of the Sexual Assault Policy and the Athlete Code of Conduct.

The arbitrator’s decision: “complete lack of policies”

The arbitrator reinstated the grievor with full back pay and benefits, placing the blame on the University for its role during the student registration process. He found that the University did not pursue missing information on the eligibility transfer form in the transfer-vetting process after Medicine Hat College stated it could not reveal reasons why the student would not be eligible to compete at the U of S.

The arbitrator also criticized the “complete lack of policies regarding recruitment” and the broad discretion conferred on coaches in selecting players. Further, he rejected the U of S’s argument that the grievor had failed to exercise good judgment, noting that the gravity of the facts of the sexual assault were unknown to the grievor at the time. He determined that it was reasonable for the grievor to assume that the University was aware of the charges against the student since it had approved his transfer. The Arbitrator stated that, in light of “what the Grievor knew and assumed at the time, as well as the complete lack of policies regarding recruitment” he could not “conclude that the Grievor’s error was serious enough to warrant discipline.”

The arbitrator also declined to find any breach of U of S policy, noting that the Code of Conduct applied to student athletes and not to coaches and, in any event, did not prohibit a player with pending charges from playing. He found no breach of the Sexual Assault Policy.

Finally, the arbitrator found that the comments to the media were not governed by any media policy, noting that the coach had regularly spoken to the media without needing prior approval. In his view, any reputational damage that may have been caused by the situation, “was already there with or without the interview” and the comments allowed the University to treat the grievor as a “scapegoat” and place the responsibility solely on him.

Conclusion: policies to guide actions

The recent decision from the U of S highlights the importance of having detailed and updated policies in place. Many different aspects and roles at a university can be impacted by these cases and a review of various policies to ensure they contemplate potential issues of sexual violence and sexual assault charges is important. This would include recruiting and media policies but also other governing documents that guide the student body, faculty and others on campus.

When faced with serious decisions and the heightened scrutiny associated with traditional and social media, having a guiding process and requirements in place is essential. While there is tremendous pressure on universities to act and to be seen as acting quickly when there are allegations of sexual violence, all actions should have a foundation in university policy and process. Ensuring your policies are evolving with the current realties will be invaluable as these situations arise on campus.