University of Idaho Athletic Director Rob Spear's claim that a policy change wasn't applicable to a sexual assault case his department mishandled in 2013 doesn't match university records obtained by the Idaho Statesman.
Spear described a series of confusing policy changes earlier this month while explaining his actions to the student senate. However, records show how the university changed its policy to allow for investigation of off-campus sexual harassment and violence, made that policy permanent and informed all staff of the change.
Spear has been on administrative leave since April 3 while two independent investigators research his department's handling of sexual assault and harassment complaints. The student senate voted 10-5 to ask for Spear's resignation after Idaho Statesman stories revealed three complaints against football player Jahrie Level from three different women in 2012-13. The harassment complaint by track athlete Maggie Miller and assault and harassment complaints by diver Mairin Jameson, all coming in April 2013, weren't reported by the athletic department to the dean of students office for investigation as required by university policy.
Jameson was told in a meeting led by Spear in April 2013 that the university couldn't investigate her assault case for potential discipline because it occurred off-campus, she said. However, the university had expanded its jurisdiction to comply with federal Title IX guidelines 13 months earlier.
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Spear told the ASUI Senate on April 4, 2018, that retired Moscow Police Lt. Dave Lehmitz, who supervised the campus division at the time, provided the incorrect information about university policy. Spear also said that the emergency policy initially put in place expired six months later because it wasn't followed with a permanent policy covering off-campus incidents.
"I'm taking responsibility for a confusing situation with the policy," Spear told the student senate. "I could probably stand here tonight and say I didn't violate policy because we followed the policy that was on the book. Now, I wasn’t really aware of the confusing nature of the policies until I started doing some research."
The university countered that night with this statement: "The policy was clear. Spear’s knowledge of it was inadequate.”
So who was right? Here's what the Idaho Statesman learned through a series of requests for information from the university, including a public records request that was answered late last week.
▪ On Feb. 27, 2012, an emergency policy was enacted to expand jurisdiction off campus for sexual harassment and violence pertaining to students. Then-President Duane Nellis wrote that he was implementing the policy "to conform to legal requirements promulgated by the U.S. Department of Education," which made clear in 2011 that off-campus incidents should be investigated.
▪ On April 24, 2012, the faculty senate considered policy 2350, described as "the permanent policy to replace the emergency policy" enacted by Nellis. The cover sheet for the policy said it would take effect "immediately upon final approval by the president."
▪ On May 30, 2012, Nellis signed a memo approving policies recommended by the faculty. Policy 2350 was approved without comment.
The policy includes the following passage: "When the allegations in a student’s complaint include Sexual Harassment or Gender-Based Harassment, the Dean of Students office (“DOS”) must investigate the incident and take immediate steps to protect the complainant in the Educational Setting. This applies whether the alleged conduct occurred on or off campus."
▪ On June 19, 2012, an email was sent to all employees "to communicate presidential actions taken on policies passed at the University Faculty Meeting, April 24, 2012." The email included a link to review all 16 policy changes but didn't highlight individual policies. The link cited in the email no longer works but U of I Deputy General Counsel Jim Craig provided a link to the current version of that page, which catalogs presidential actions on university policies.
That was the only email Craig found that referenced the policy change.
"This doesn't mean that other emails were not sent, simply that we were unable to find any other emails in our search," he said.
▪ On April 29, 2014, the faculty senate considered an overhaul of the Student Code of Conduct — the first in more than 40 years — that included deleting 2350 because it would be incorporated into the code of conduct elsewhere. That process began in 2013, according to the policy cover sheet presented to the faculty senate, but 2350 wouldn't be deleted until the new Student Code of Conduct and University Disciplinary Process for Violations of the Student Code of Conduct were adopted. Those changes were approved by President Chuck Staben on June 12, 2014, for implementation July 1, 2014. (Staben's memo, incidentally, was misdated as June 12, 2013 — before he arrived at Idaho.)
The law firm of Magyar, Rauch & Associates in Moscow, which represents Spear, provided a statement to the Statesman questioning the level of training and notification Idaho employees received.
"I can see that there was an email which linked to more than 15 other policy changes at once," the law firm statement says. "Given the gravity of the policy change it seems a bit under-communicated. One might expect that a dramatic policy change which impacts students, faculty and staff in such sweeping ways might deserve its own email with links to assistance on procedure, including contact information."
The Department of Education's 2011 guidance said "schools need to ensure that their employees are trained so that they know to report harassment to appropriate school officials, and so that employees with the authority to address harassment know how to respond properly."
Spear told the ASUI Senate "at the time there was no training on this campus about Title IX, no training about how you’re supposed to handle certain situations."
"Policy changes simply on paper is not compliance with the 2011 Title IX guidance," the law firm statement says. "The guidance itself requires far more of the institution in the way of training and communication with faculty, staff and students about these changes and what they mean."
Jodi Walker, a U of I spokeswoman, said employees are expected to know policy changes.
"Policy change procedure at the University of Idaho is standard and clear," she said. "The policy revision in question was formalized in May 2012 and communicated to faculty and staff in the same way we always handle policy changes. Because student safety is our primary concern, we expect all our faculty and staff to be aware of policy changes and to implement them as appropriate for the benefit of our students.
"The university has hired two independent investigators to review the 2012 and 2013 sexual assault cases. After reviewing everything, public and protected, these investigators will report on what went right and what should have been done better. In the meantime, we are reviewing our current policies and practices to ensure we are doing everything possible for the safety and success of our students."