Title IX attorney: ETSU athletic director should have prevented players’ dismissals

JOHNSON CITY, Tenn. (WJHL) — East Tennessee State University acted appropriately in its Title IX investigation by firing women’s basketball coach Simon Harris, a Title IX attorney told News Channel 11, but former Athletic Director Scott Carter could and should have prevented two players’ dismissals from the team.

“If the athletic director had done his job here, these two women would never have been dismissed from this team,” said Lisa Cloutier, who litigates Title IX cases for the Fierberg National Law Group.

Cloutier also said the unnamed players — whose February 2022 Title IX complaints led to the investigation — displayed “a lot of courage and fortitude” to initiate the complaints and persevere through the process. Title IX is a federal civil rights law prohibiting discrimination on the basis of sex in any educational program or activity that receives federal funding.

“It can be very intrusive and time-consuming and stressful, particularly to people who in most cases have gone through pretty traumatic experiences and are being forced to retell that and relive that with people who they don’t know,” the Harvard Law School graduate said.

And Cloutier said though the university’s investigation “was not what I would call quick … it does look like the investigation report is fairly thorough and reached conclusions that are clearly supported by law and regulation.”

She said while Harris deserves the blame for his “unfair and terrible treatment” of the players, who were kicked off the team following its seventh game on Nov. 28, Carter in his capacity as AD had the ability and responsibility to tap the brakes when Harris decided to dismiss them.

“When the coach went to the athletic director in this situation, the athletic director failed to ask the proper questions, examine whether there was any policy in place that was violated, and furthermore ask for proof of the supposed violation,” Cloutier said.

According to the investigation, Carter oversaw all major team decisions as sport administrator for women’s basketball, including hiring and firing, roster additions or removals, and budget.

Instead of questioning the coach, ETSU’s investigation report details that when Harris first told Carter on Nov. 30, 2021 about the players’ alleged behavior, telling the AD of another player supposedly witnessing the two having “a sexual encounter” in a hotel room during a team trip, Carter “did not get many specific details beyond that initial description.”

Carter told investigators he didn’t inquire further and “seemed uncomfortable with the subject matter,” the report states.

As it turned out, Harris’s allegations were unsubstantiated, and other allegations about violating additional team rules later fell apart. The investigation found his actions in dismissing the players wrong and recommended his termination.

But when ETSU President Brian Noland told compliance counsel Marlina Rogers the same day (Nov. 30) about the “potential issue” Carter had brought to him, and Rogers called Carter and Harris and asked that they “pause to discuss the situation,” that didn’t happen.

The players were already present for meetings with Harris, and were “being removed from the team for serious sexual misconduct and violating multiple team rules.” Harris confirmed with Rogers “he had documentation” to back up the allegations.

The report gives no indication that Carter ever pushed back, and on Dec. 3, 2021, Harris submitted a “‘Change in Roster — Removal from Squad List’ form to Athletics Compliance,” it says. The removal was effective Dec. 1, along with terminating the players’ scholarships prorated to Dec. 3, which was a potential NCAA rules violation.

Cloutier said it shouldn’t have been a heavy lift for Carter to realize “it was clearly totally inappropriate based upon the fact that there was no violation to begin with.”

She added that “even under this vague rule that they supposedly violated about family kissing family, dismissal from the team was wildly inappropriate based on the fact that other members of the team had committed far more serious violations and not had any sort of discipline that rises to that level.”

She called it a “pretty basic ask” to expect Carter to ask Harris necessary questions.

“It isn’t asking him that much to ask basic questions before allowing a coach to dismiss players. I think there’s a clear failure here.”

Cloutier said continued change is needed in sports when it comes to the treatment of women but that egregious situations, whether they involved predatory behaviors, discrimination against LGBTQ players or other violations, often go unchecked.

“Unfortunately we’ve seen examples where behavior like this has gone on for many years and has not been properly handled within universities, sometimes even when there is a Title IX report, so that absolutely is a problem,” she said.

“Here at least we do see that the report I think made the clear and proper finding to fire this coach based on his conduct, but sometimes unfortunately we see behavior covered up as opposed to seeing it actually properly investigated and sanctioned.”

She said that’s one reason she has great respect for people like the players who made the complaints against Harris on Feb. 4 and Feb. 9 of this year.

“It’s so important, because it takes the courage of women stepping forward for change to happen,” Cloutier said. “It’s unfortunate that these two players were put in a situation where they had to do this after they faced the unfair, terrible treatment they faced from this coach by being dismissed and prohibited from doing what they loved and having their scholarships revoked.”

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