Patricia Ohlendorf

Bev Kearney, former women’s track and field head coach, filed a lawsuit against the University alleging discrimination based on her race and her gender Thursday, according to her attorney, Derek Howard.

Kearney resigned in January after being told the University was prepared to fire her for a having a consensual relationship in 2002 with Raasin McIntosh, who was a student-athlete on Kearney’s team.

In her lawsuit — which seeks more than $1 million — Kearney said Bubba Thornton, former men’s track and field head coach, consistently demeaned her in front of others and falsely accused her of committing NCAA infractions.

The lawsuit points fingers at a wide range of University officials who Kearney claims she reported the harassment incidents to and chose to do nothing about it. The list includes men’s and women’s head athletic directors DeLoss Dodds and Chris Plonsky, Jody Conradt, former women’s head athletic director, Patricia Ohlendorf, vice president for legal affairs, Gregory Vincent, vice president of the Division of Diversity and Community Engagement and individuals in the human resources department.

"The University of Texas will thoroughly review the unfounded allegations of Ms. Kearney's lawsuit and respond through proper legal channels," Ohlendorf said in a statement.

The lawsuit also alleges that other University employees — predominately white males — have been involved in relationships with students or direct subordinates and have not received any disciplinary action. It cites the University’s handling of an incident with football co-offensive coordinator Major Applewhite as an example. Applewhite engaged in “inappropriate, consensual behavior with an adult student” in 2009, according to a letter from Dodds obtained by The Daily Texan through the Texas Public Information Act in February of this year. Applewhite’s salary was suspended for a year following the incident, but he has since received promotions and raises.

"When the university reviews inappropriate behavior by its employees, each case is evaluated on its individual facts," Ohlendorf said in a statement. "In this case, it was evident that Ms. Kearney displayed a serious lack of judgment by having an inappropriate, intimate, long-term relationship with a member of her team. The team member later reported it to university officials who pursued all appropriate action."

Kearney took the helm of the women’s track and field program in 1992, and her teams have won six NCAA championships.

Kearney was placed on administrative leave by the University almost exactly one year ago after McIntosh revealed her past relationship with her coach to officials in UT athletics. Since then, much has changed in the department. Thornton announced his retirement in June and Dodds plans to step down in August. The UT System Board of Regents voted to approve Steve Patterson, the newly hired men's head athletic director, Monday.

Bev Kearney, former women’s track and field head coach, has filed a discrimination complaint against the University, according to her attorney, Derek Howard. 

She filed the complaint with the Texas Workforce Commission’s Civil Rights Division, which will now conduct an investigation to see if there were any violations of the Texas Labor Code. The commission has 180 days from the filing date to investigate the complaint and determine whether Kearney has the right to sue the University.

Patricia Ohlendorf, vice president for legal affairs, said the University will also begin reviewing the complaint.

“Coach Kearney’s allegations of discrimination will be reviewed thoroughly and responded to according to [the U.S. Equal Employment Opportunity Commission] and Texas Workforce Commission procedures,” Ohlendorf said in a statement.

Kearney resigned in January after she was told the University was prepared to fire her because of a relationship she had with a student-athlete in 2002. 

The former student-athlete reported the relationship in October, after which Kearney was put on paid leave. Ohlendorf said in the statement Kearney was given an opportunity to provide her side of the story and appeal any decisions the University could make, but she chose to resign. 

Kearney and Howard contest that the University handled her situation differently than similar situations have been handled in the past. In February, a Texas Public Information Act request by the Daily Texan revealed football offensive coordinator Major Applewhite engaged in “inappropriate, consensual behavior with an adult student” during the 2009 Fiesta Bowl festivities. Applewhite’s salary was frozen for a year, but he was not fired.

Ohlendorf said the University reviews allegations and reports of unprofessional relationships on a case-by-case basis.

“As Coach Kearney was told by the University, the relationship that she had with the student-athlete is unprofessional and crosses the line of trust placed in the head coach for all aspects of the athletic program and the best interests of the student-athletes on the team,” she said in the statement.

Published on March 18, 2013 as "Former coach files discrimination suit". 

 UT is filing a response today that asks the U.S. Supreme Court not to review a lawsuit challenging its consideration of race in the undergraduate admissions process, vice-president for legal affairs Patricia Ohlendorf said.

The lawsuit Fisher v. Texas was originally filed in 2008 on behalf of two white students denied admission to the University. UT’s filing with the court responds to the suit’s appeal to the Supreme Court, which only one of the students pursued. Ohlendorf said UT argues in the response that the University is in accordance with a 2003 Supreme Court case, Grutter v. Bollinger, which allows universities to use race in the admissions process to promote diversity.

“UT believes that its arguments are strong,” Ohlendorf said. “UT believes that its admissions policy is consistent with the U.S. Supreme Court opinion in Grutter v. Bollinger.”

Race and ethnicity is one of eight special circumstances that, along with personal and academic achievement, are factored into the freshman admissions process, according to the University’s website.

Fisher v. Texas was defeated by an Austin district court and the 5th Circuit Court of Appeals. In a 9-7 vote the 5th Circuit Court of Appeals refused to re-hear the case. These lower courts have ruled UT’s policy is in accordance with the Supreme Court decision in Grutter v. Bollinger.

In an opinion written for the 5th Court of Appeals by judge Emilio Garza, he concurred UT was within legal bounds set down by the Supreme Court but was critical of the University’s use of race as a contributing factor to admission in part because UT already had existing policies that effectively promoted diversity.

“The University was able to obtain approximately 96 percent of the African-American and Hispanic students enrolled in the entering in-state freshman class using race-neutral means,” Garza said.

The race-neutral policy Garza referred to is the state law passed in 1997 that mandates UT to admit all Texas public school students in the top 10 percent of their graduating high school class. Garza said the fate of UT’s admissions policy rests in the hands of the Supreme Court.

UT’s top 10 percent rule has changed since the suit was filed, but the Supreme Court will base it’s decision on the 2008 policy.

“The Supreme Court has chosen this erroneous path and only the court can rectify the error,” Garza said.

A Supreme Court ruling striking down the race-based policy is something Edward Blum, a UT alumnus and member of the Project on Fair Representation, said his group supports.

“We disapprove of virtually all considerations of race in public policies,” Blum said. “What makes the UT case unique is that UT already had a law in place, known as the top 10 percent law, that was doing a better job of promoting diversity than the race-based policy.”

Blum said the Project for Fair Representation, a nonprofit legal defense fund, is paying for Fisher’s lawyers, and he expects at least six outside agencies to file briefs in support of Fisher today.

For past hearings of the lawsuit, the National Association for the Advancement of Colored People Legal Defense Fund has filed briefs in support of the University on behalf of the UT chapter of the Black Student Alliance. Representatives of the organization did not indicate it had filed a brief with the Supreme Court.

Cortney Sanders, government freshman and political action chair for the BSA, said she did not wish to speak of her or the BSA’s opinions of the lawsuit, but she encouraged her classmates to research the case’s factual background.

“The fact is the plaintiff was in the top 12 percent of her class and did not qualify for automatic acceptance,” Sanders said.

She said Fisher could have gotten points in the holistic admissions process for non-top 10 percent students by participating in extracurricular activities, being an athlete or demonstrating musical ability.

“She chose not to do those things,” Sanders said. “It’s a point system. Students need to know that.”

UT’s admission policy also may be affected by new guidelines released last week by the Department of Justice and Department of Education that provide approved methods for increasing racial diversity. The guidelines focus on how universities should implement policies if they find race-neutral approaches to be ineffective to achieve the diversity the institution seeks.

Previous guidelines administered in 2008 under the Bush administration stated, “before using race, there must be serious good faith consideration of workable race-neutral alternatives.”

UT spokesman Gary Susswein said University officials are reviewing the guidelines but could not speak about the admissions policy due to the pending lawsuit.

The Supreme Court is expected to decide in mid-January if it will hear the case, Blum said.

Printed on Wednesday, December 7, 2011 as: UT asks court not to review affirmative action lawsuit