President-elect Donald Trump referred to disparaging and sexually aggressive comments he made about women in 2005 as "locker-room talk" when confronted with video evidence of his remarks while on the campaign trail. His exact words during the second presidential debate being: "This was locker-room talk. I'm not proud of it. Yes, I'm very embarrassed by it, and I hate it, but it's locker-room talk."
With so few Americans being privy to open and honest male-athlete banter in the locker room, many questioned if there was truth to his statement.
However, as fate would have it, over the past month, we have gotten a glimpse into what a limited group of college athletes have actually said behind seemingly closed doors. Sadly, it wasn't far from Trump's description.
In early October, a 2012 version of the Harvard men's soccer team's "scouting report" was released via the school's newspaper, the Harvard Crimson. The "report," as dubbed by its authors, was an annual "ranking" of the recruits for the university's women's soccer team, which was based on their perceived likelihood to engage in sexual activity, physical features and overall sexual appeal (in addition to their positions on the soccer field).
Not long after the release of the "scouting report," we learned the school's men's cross-country team had devised a similar, albeit less explicit, spreadsheet for evaluating athletes on the women's cross-country team.
Then in early November, group text messages from Columbia's men's wrestling team surfaced. These messages disparaged women for apparently wanting equal treatment, reduced women to mere sexual beings and used homophobic and racist slurs.
After school administrators investigated the content of the lists and messages ("documents"), Harvard canceled the remainder of its soccer team's season and Columbia suspended its wrestling team. But is that enough? And is it just? Many legal professionals have begun questioning the fairness and legality of the suspensions.
These legitimate questions (see below) need answers.
I'm here to provide some.
Legally, what disciplinary actions can universities take against student-athletes?
Student-athletes have rights, but as representatives of their private universities, those rights are limited by school codes. The First Amendment to our Constitution says, "Congress shall make no law ... abridging the freedom of speech." The key word is Congress, meaning the government. The government generally cannot limit speech, but private schools certainly can. Therefore, if student-athletes at Harvard and Columbia say or write things that are at odds with the schools' moral and ethical codes, they can be punished for it. Both institutions have expressed concerns that the behavior is the complete antithesis of what they stand for and the communities they strive to foster.
Privacy rights really aren't at issue here. Neither institution was responsible for unearthing the documents. Either someone directly involved with their making or some third party provided the documents to school newspapers and officials. Additionally, neither university has revealed the identities of the people involved. Documents provided for public consumption were heavily redacted, protecting the identities of the authors and the subjects.
The identities we do know are those of the six brave, eloquent women from Harvard's soccer team who issued a statement, "Stronger Together." They laid out their feelings about the "report" and society as a whole in an effort to combat sexism and misogyny and to give themselves a voice in a conversation that had largely focused on the perpetrators, not the victims.
Speaking of the ladies referenced or indicated -- do they have any rights?
It appears that Harvard has contacted the women in the "report," suggesting the school is taking their feelings or reactions into account. Because the ladies' statement makes it clear that they suffered emotionally from the content of the "report," they may be able to take legal recourse. As such, they might have standing (the ability to bring a lawsuit) against the authors under a theory of intentional infliction of emotional distress (IIED). In Massachusetts, where Harvard is located, IIED occurs when someone, "by extreme and outrageous conduct and without privilege causes severe emotional distress to another."
According to the law, the ladies would have to show:
1. The players intended to inflict emotional distress or knew (or should have known) that emotional distress would likely result from their conduct;
2. The players' conduct was extreme and outrageous, beyond all possible bounds of decency and unacceptable in a civilized community;
3. The players' actions caused the women distress; and
4. The women's emotional distress was so severe that no reasonable woman should be expected to endure it.
What about Harvard and Columbia; what is their direct responsibility?
Title IX, a portion of the Education Amendments of 1972, states: "No person in the United States shall, on the basis of sex, be subjected to discrimination under any education program." This requires that schools actively prevent sexual discrimination and hostile environments based on sex. The release of documents that objectified and disparaged women activated the universities' Title IX duties to investigate the conduct, ensure it ceased, tend to the needs of anyone harmed and protect others from future harm. Failure to uphold those responsibilities could lead to costly lawsuits and penalties.
But beyond the legal ramifications and limitations surrounding the documents, there are larger societal issues. The documents prove our culture still operates with sexist, misogynistic undertones. In the most elite of educational institutions, some men still look at women as mere sexual objects. These women are both athletes and scholars who have likely busted their butts for hours and years of their lives to get accepted at these prestigious universities, only to be reduced to sexual conquests, nicknames and numbers.
The Bottom Line
As a woman and lawyer who works in a male-dominated industry, I write these words with the sincerest understanding of how great the battle is that we face to be respected. We fight it consistently and tirelessly, but we aren't in this alone. There are countless men who genuinely respect and champion our causes. Think about all the NBA, NFL and MLB players who spoke up and said this is NOT my "locker-room talk."
When the conversations that objectify women happen in locker rooms, offices and text messages, both men and women should open their mouths and speak up for women's dignity and valid place on this earth. Fathers should teach their sons to truly respect women, and that masculinity is found in uplifting and supporting women, not degrading them.
Cecelia Townes is a proud graduate of UCLA School of Law and the Real HU in Washington. She used to ball so hard on the tennis court. Now she serves it up on her blog, GladiatHers.com, and with student-athletes with Beyond the Game LLC. Follow Cecelia on Twitter & Instagram @SportyEsquire