A Gibbons timeline (and a few undisputed facts)

Submitted by Erik_in_Dayton on January 29th, 2014 at 11:56 AM

I'm creating this because it seems that people are missing some of the important facts that folks dug up and posted in the front page thread on this subject.  (Mods, no hard feelings if you take this down.)  I've done my best not to interject any opinion into what is below.  My purpose in posting this is merely to try to have everyone on the same page as far as facts and timing.

2009 and earlier:  OSCR investigates sexual assaults for U of M but only does so if the complaintant cooperates.  They find someone guilty of sexual assault only if a "clear and convincing" burden of proof has been met. 

Late Nov. 2009:  The incident occurs.  Police reports are made.  Gibbons, of course, denies any wrong-doing...Not long after, Taylor Lewan allegedly threatens the young woman involved with rape if she presses forward.  I have never been able to determine whether Lewan admitted to making this statement.  Please let me know if you know otherwise...We don't know what happened internally to Lewan and Gibbons, but neither is suspended...EDIT: In fairness to Lewan, myself and others have inferred from a police report that Lewan was alleged to have threatened the young woman, but the police report in question is redacted as far as names (at least in the report available online).

Late 2009-Early 2010:  The young woman decides she does not want to press charges, thereby ending the state's investigation.  What OSCR does at this point is unclear.  

2011:  The federal government, via Title IX, tells universities that they must investigate alleged on-campus sexual assault regardless of the cooperation or lack thereof of the alleged victim.  It also tells schools to use a "preponderance of the evidence"  standard when evaluating guilt.  http://www.michigandaily.com/news/university-adopts-new-sexual-misconduct-policy-0?page=0,0 

Aug. 2011:  U of M institutes an interim policy designed to comply with the new Title IX mandate.  (See the link above.)  It appears that the interim policy complied with the mandate to use the preponderance of the evidence standard and to investigate sexual assault claims regardless of cooperation from the alleged victim, but the university's online explanation of this is, in my opinion, somewhat unclear.  http://studentsexualmisconductpolicy.umich.edu/faqs 

The implementation of the interim policy appears to have led more women to come forward to make complaints, as the number of sexual assault complaints made on campus rose from three in 2010-2011 to 62 in 2011-2012.  http://www.michigandaily.com/news/university-adopts-new-sexual-misconduct-policy-0?page=0,1 

Aug. 8, 2013: The Washtenaw Watchdogs blog brings the Gibbons incident back into the public eye.  

Aug. 19, 2013:  U of M implements its current policy, described by the Daily as the result of a two-year fine-tuning process of the interim policy.  (See all links above.)  The current policy unquestionably calls for investigations of alleged sexual assaults regardless of cooperation from the alleged victim and unquestionably uses the "preponderance of the evidence" standard regarding guilt.

Nov. 20, 2013:  OSCR produces a document telling Gibbons that a preponderance of evidence supports the claim that he committed sexual assault.  http://www.michigandaily.com/sports/former-kicker-brendan-gibbons-expelled-sexual-misconduct 

Nov. 23, 2013:  Gibbons plays against Iowa.

Nov. 30, 2013:  Gibbons does not play in the OSU game, purportedly because he is injured.

Dec. 4, 2013:  Gibbons meets with OSCR to discuss the findings against him. (See last link.)

Dec. 16, 2013:  Coach Hoke states that Gibbons may not play in the bowl game because of an injury.

Dec. 19, 2013:  OSCR produces a letter telling Gibbons that he is expelled.    http://www.michigandaily.com/sports/former-kicker-brendan-gibbons-expelled-sexual-misconduct 

Dec. 23, 2013:  Coach Hoke tells the media that Gibbons will miss the bowl game because of a "family matter."

A final note:  Dave Ablauf, in the Daily article linked above (the last link), states that the AD cannot comment on the academics or university standing of an athlete.  University spokesman Rick Fitzgerald also said in that article that he could not comment because of the Family Educational Rights and Privacy Act (FERPA).  One could quibble a bit about what Ablauf and people in the AD can say about Gibbons if they wanted to test the bounds of FERPA, but there is little doubt that U of M's legal people believe exactly what Ablauf said, namely that he could not comment on the relevant issues.  One errs on the side of caution in such circumstances...I point all of this out to say that Coach Hoke was never free to say that Gibbons was no longer at the school (save the unlikely event that Gibbons would have consented to this).  I don't state that as a comment on what he did say. 

EDIT: mackbru seemingly correctly points out that the school can at least arguably say whether someone is enrolled.  See the link below that describes a FERPA exemption for "directory information."  I highly doubt this covers saying that someone was expelled, but I am not a higher ed lawyer.  There may be some big grey areas here, and none of this post should be taken as legal advice (sorry - had to say that). 



Final final note: Credit to Don, Kilgore Trout, and guthrie for digging up much of what I posted above.  Also thanks to those in this thread who have made suggestions.




January 29th, 2014 at 7:35 PM ^

I have been paying attention, but you apparently didn't even read my response before starting in again on false statements.

The "charge" of sexual misconduct was one that had nothing to do with the criminal legal system, which dealt only with the issue of whether or not Gibbons committed a crime that the legal system could prosecute.  There was no criminal prosecuation, so your argument that this was a criminal case is invalid.

The university came to a conclusion about a different issue than the legal system considered.  That's their job.

Also, due process is not an issue of criminal versus administrative proceedings.  The requirements of due process seem to have been met in this case.  Additionally, the status of any other case or cases is not relevant to this case, so I have no idea why you think FIRE providees any evidence in the Gibbons case.

BTW, learn what "re ipsa loquitor" means before using it again.  It is a legal term of art used in negligance cases.  This isn't a case of negligence.


January 30th, 2014 at 12:40 AM ^

you failed to pay any attention to my argument.  How can a charge of a sexual crime have "nothing to do with the criminal legal system?"  That's illogical.  By your logic, if somebody was accused of theft (or some other crime) and no criminal charges were brought after a thorough police investigation, the university can still conclude guilt.  I disagree.  And a jury in a civil case might be expected to disagree.

Does a student sign away all his/her rights when enrolling at a university?  Can a university legally expel somebody without adequate evidence of wrongdoing (as determined by the proper authorities)?  I highly doubt it.  This type of university misconduct has been successfully fought in the courts by... FIRE.  So that's why they're relevant.  Certain legal rights supercede even a policy order from the Obama administration.

As for your last point, I would suggest that you bone up on your Latin  It's a Latin phrase which can be used in a narrow legal manner or more broadly.  Or is there some law against doing so?  Hey, maybe it's against the university's code of language conduct and could be grounds for explusion.  And I wouldn't easily dismiss the notion that this isn't a case of negligence.  The university's conduct might be judged to be grossly negligent by more than one party here.

I think you've made up your mind without adequately considering the merits of my argument.  I can't grant you an open mind so let's just agree to disagree. 


January 30th, 2014 at 1:03 AM ^

Can you provide an example? I've looked through the FIRE website and I can't find a single case where they've even attempted to challenge the dismissal of a student on the grounds that he had not been convicted of a crime, much less succeeded in having the dismissal overturned. The closest I can find is the Brandeis case, which they lost, but the issue there was whether the school had breached promises made in its student handbook, an issue I haven't heard raised at Michigan. Attempts to claim lack of due process because the procedure didn't allow the accused to face his accuser failed.

There's also a situation at Harvard where the student in question was acquitted (not the case here), but that case is 12 years old now and they seem to have made no progress beyond some media posturing. They never even filed, as far as I can tell.

There's nothing here that makes me think they could help Gibbons win a civil case. To be honest, there's nothing here that even makes me think they would want to try.


January 30th, 2014 at 1:21 AM ^

of FIRE winning a lawsuit against a university for violating a student's rights through an inappropriate expulsion.


I know it's not the same.  But I'm too tired to do a larger search.  And I don't know the odds of winning a civil lawsuit.  FIRE is not a wealthy organization and is fighting against the tides of political correctness.  I do think it's unjust for the university to expel a student for an alleged crime which didn't even result in criminal charges let alone a conviction.  And I would think that unless the student contract expressly allows such an action by the university that it would be grounds for a lawsuit.  I also think that such an unjust policy even if legally defensible might eventually be repealed as more male students are unjustly victimized. 


January 30th, 2014 at 1:38 AM ^

Expelling a student for peacefully protesting a school's decision to build parking garages is not the same as expelling a student for having sex with a woman without her consent. (Which, you'll note, is not the definition of criminal sexual assault in Michigan, so despite your claims he was not expelled for a crime.)


Michigan Arrogance

January 30th, 2014 at 6:44 AM ^

Does a student sign away all his/her rights when enrolling at a university?  Can a university legally expel somebody without adequate evidence of wrongdoing (as determined by the proper authorities)?  I highly doubt it.


you're wrong- see religious schools like BYU expelling students for private consensual sex. If Gibbons wants to sue the University, he is free to do so. I doubt he'll want/be advised to do so based on the preponderance of evidence threshold.


January 30th, 2014 at 4:15 PM ^

" By your logic, if somebody was accused of theft (or some other crime) and no criminal charges were brought after a thorough police investigation, the university can still conclude guilt.  I disagree."


What if someone were accused of murder, criminal charges were brought after a thorough police investigation, and the accused was found innocent in a criminal court... but a civil court still concluded guilt?

Say OJ... or the LAPD folks who beat Rodney King.


January 29th, 2014 at 3:53 PM ^

Do we have confirmation that Gibbons attended the football bust on December 9th and spoke?  If he did, you need to add this to your timeline because it would be pretty apparent that he was still part of the team if this were true.


January 29th, 2014 at 7:22 PM ^

One can only hope that Hoke knew nothing at this point. However, again the optics are horrible for him. Brady needs to explain when he knew about it. One would have to be naive to think he only found out about it after his comments December 23rd three days after Gibbons is expelled and he is still sticking with he was injured. You don't run a program as big as Michigan without knowing everything including good and bad.


January 29th, 2014 at 10:24 PM ^

I don't understand your comment.

Brady Hoke is in no position to take action against a player for an incident that allegedly occurred four years earlier, and BEFORE any action taken by the University.  Recall that the matter had already been resolved prior to procedural changes imposed by the feds. 

In some cases, I agree, that a suspension might make sense.  In this case, given the circumstances, I am fine with letting the process take its course.



January 29th, 2014 at 4:37 PM ^

He's mentioned in this article as having spoken and having been praised by Hoke. Relevant excerpt:

Hoke on Gibbons: "He made a ton of big kicks: the Sugar Bowl, Michigan State, Northwestern with one second left. If you noticed, a lot of kickers like to take their time and get nice and lined up. We didn't let him do that, but it didn't matter. He did a tremendous job."

Gibbons: " "I'd like to thank Coach Hoke for giving me the opportunity to kick here after my struggles, and for Team 134 for having my back, and the field goal unit for getting the ball back there and letting me do my craft. Lastly, I want to thank Michigan for giving me a great education and allowing me to go out there and do what I want."



January 29th, 2014 at 4:35 PM ^

Not sure if this has been addressed but would the athletic department and/or the team be aware of the OSCR presenting Gibbons documents on November 20th indicating the preponderance of evidence? Is it possible that the documents were not given to the AD or team prior to the Iowa game on November 23? If the AD, the team, and or the coaches knew about the findings and played him against Iowa that is one of the most damning things against them in my opinion. 


January 29th, 2014 at 4:39 PM ^

seems to be an inappropriately low standard for such a case.  If there was inadequate evidence to even bring charges (and the bar is low even for a criminal charge in such a case), how can the university conclude guilt or culpability?

The administration's mandate makes of a mockery of justice and is leading to inappropriate kangaroo courts and discipline without adequate evidence of any wrongdoing.  I don't know if that happened here but it looks like the process is terribly wrong.  I wouldn't be surprised if Gibbons sued the University.  If his rights were trampled (as it appears they might have been), he should get millions. 

Ed Shuttlesworth

January 29th, 2014 at 4:55 PM ^

Preponderance of the evidence is a perfectly fine standard.  If the victim had brought a civil suit against Gibbons, preponderance would have been the standard she would have had to meet.  The parents of OJ's victims won their civil suit and big verdict against OJ under a preponderance standard.

It means the defendant is more likely to have committed the claimed acts than not.  What's wrong with that standard?  It shouldn't be enough, and isn't, to throw someone in prison, but for civil suits and things like university discipline, it's perfectly fine and rational.

Go Blue in MN

January 29th, 2014 at 5:01 PM ^

In fact an hour ago you said you hope Gibbons wins that lawsuit.  I asked you what evidence you had to take that position (I presumed you were saying you believed he was innocent, as I would hope you would not want him to prevail in a civil suit if guilty of the underlying accusations), and you have not responded.


January 29th, 2014 at 7:00 PM ^

there's a principle of due process or lack thereof, a principle of appropriate procedure and fairness which seems to be sorely lacking here. It is a fact that no criminal charges were filed. If the expulsion was purely based on the criminal accusation which was not found to be credible enough to warrant criminal prosecution, I would say that it is wrong by definition. So that's why I would hope he wins. It would deter similar misconduct and bias by the university in the future. It would protect future innocents from similar targeting by overzealous anti-rape activists. It's a matter of basic human rights. Sexual assault is a terrible crime. But punishment for alleged sexual assault without adequate proof is at least as much of a crime.

We may have to agree to disagree. I just hope that we learn to have respect for everybody's rights, both accuser and accused.

Go Blue in MN

January 29th, 2014 at 8:14 PM ^

We do agree that both the accuser and the accused have rights.  The problem I have with the opinions stated by you and Section 1 is that you seem to have assume that unless someone is found guilty of a criminal offense in a court of law, nothing bad ought to happen to them.  So would you deny the families of the victims of the murders allegedly committed by OJ Simpson the opportunity to bring a civil lawsuit against him even after he was found not guilty of the murders?  Would you deny ABC the right to remove him from announcing NFL games on its network, or would that be violating his rights as the accused?

In the criminal context, the rights of the accused are paramount.  In a civil lawsuit, the rights of the parties are balanced fairly equally.  In the ABC example, it's purely in the "court" of public opinion, as OJ had no "right" to announce football games.  I would argue that the university's action is more like the second or third examples than the first.


January 30th, 2014 at 1:05 AM ^

But I don't think you understand my entire viewpoint on the matter.  If somebody engages in non-criminal misconduct, they may suffer bad consequences - suffering the scorn or ridicule of others for instance.  If somebody engages in criminal misconduct, the responsibility and consequences are appropriately determined by a criminal court.  That is the case here since the alleged misconduct is a criminal matter.

As for the other cases you cite, I do have trouble with how the civil legal system operates.  There should be a similar high standard of guilt as in criminal cases.  Inflicting financial injury (as well as injury in terms of personal time and emotional distress) on somebody by means of a lawsuit should  not be taken lightly as it is today.  In the OJ case, I do disagree with the use of the civil legal system to determine guilt in a criminal matter for which he was exonerated.  In my mind, it's a form of double jeopardy.  And I believe OJ was guilty as sin and the criminal legal system failed miserably in that case.  As for his employment with ABC, an employer should have great latitude to discontinue employment for any reason.

But I respect your arguments and viewpoint.

Ed Shuttlesworth

January 29th, 2014 at 4:52 PM ^

The head coach's "investigation" is real simple.  He calls Gibbons into his office and asks him point blank about the allegation that he sexually assauted a woman on campus.  If Gibbons's answer is anything other than a believable denial, he suspends Gibbons for violating team rules.

Same with Lewan.

This is simple.  Don't complicate it.  The football team isn't bound by the university investigation or the police investigation, and shouldn't be.  They have virtually unfettered authority to suspend players from the team or kick them off for conduct inconsistent with what they want on their team.

The reason the football coach does this is simple: He doesn't want to risk having a person who committed sexual misconduct against another student and a person who threatened a witness in a potential rape play for his football team for four years.  If you take the risk that it will turn out that those are the players you are harboring, the heat is on you if they're ultimately determined to have been guilty. 

And guess what:  That's what happened.  They took a big risk that Gibbons would be "acquitted" and that it would all blow over and they lost.  As a result, we had a guy who committed an offense against the university so severe that he was expelled playing for the team for four years, and a guy who threatened witnesses in the action underpinning the events for which his teammate was expelled playing on the team for four years, and actually made a captain for a year.

That's a firing offense.  No question about it.  What Hoke knew when is irrelevant (though he likely knew a lot pretty early).  It was his job to figure it out and eliminate the risk of what happened, happening.  He had all the tools he needed to do that readily at his disposal, even if every other investigating body didn't tell him a thing.

Same thing for Brandon, naturally.

Ed Shuttlesworth

January 29th, 2014 at 5:14 PM ^

The university came to a different conclusion because the standard of proof is lower and the charge isn't necessariliy the same.

In much the same way that the OJ criminal jury found OJ not guilty, but the civil jury found him guilty of the murders.

None of which has much to do with the critical failure at issue here, which is the failure of the football team itself, and its management, to investigate this properly and apply its own standards in the way they should have been applied. 

Ed Shuttlesworth

January 29th, 2014 at 5:19 PM ^

The "specific evidence" in this case was enough to get Gibbons expelled by a tribunal that rarely, if ever, expels students.  That's one thing we know about it.

It's hard to imagine a scenario in which that evidence could have been consistent with Gibbons properly remaining on the Michigan football team.  I guess if he told a believable lie to Hoke that was supported by other witnesses -- but even that's a massive imaginative stretch given that there were only two people in the room when the actual events occurred.


Ed Shuttlesworth

January 29th, 2014 at 5:40 PM ^

I just read the Washtenaw Watchdog posting.  How can anyone say Hoke or Brandon didn't know about the charges and a lot of the facts underlying them when that website has three police reports and reports of follow-up actions by the police relating both to the victim's wellness and the police telling [Redacted, apparently Lewan] to cease and desist with the threats?

Where's the mystery and ambiguity here?  The source documents were posted online a long time ago.

(Unless there's some kind of Penn Stateish kool-aidy claim that the documents are fake, or something.)

Ed Shuttlesworth

January 29th, 2014 at 5:53 PM ^

How could there not have been any coverage of this in the press in 2013? 

I guess I remember reading here last summer some vague references to this, but I never heard of the Washtenaw Watchdog material until now and just read it and it's jaw-dropping.  How was this never a topic of discussion during the season?  There are several source police reports, a mug shot, witness threatening, wellness checkups of the victim, etc. 

Source police reports.

How did this happen?  And how in the hell are people arguing on the board about what Hoke and Brandon knew?  All they needed to do was hit a link on a computer.


January 29th, 2014 at 6:03 PM ^

There was discussion on here about that before thread got shut down. There was plenty of discussion on OSU and MSU boards, twitter, and other boards. you would have had to try hard to not be aware of this story. It was never reported on in 2013 by "mainstream" media. This was probably because they really had nothing to report on other than Gibbons was accused of rape and no charges were filed...thats not much to write a story on in 2013. There were reports in AA News /MLive back in 2009 when incident occurred but when no charges were filed there's not much to report on unless you are talking to the accuser. Once it goes into university proceedings, there really isnt much to report on since nothing is released.

Even now, the Detroit papers have nothing to go on since the Daily is the only place that has this document of his expulsion. Papers like the Detroit News are just sourcing the Daily report and they cant really report anything else as the university cant/wont say anything.

Ed Shuttlesworth

January 29th, 2014 at 6:19 PM ^

But the Watchdog published the police records.  None of the major papers could get them?  And none of them could use them as the basis to grill Hoke and Brandon?

Or were the police records out earlier?

I guess that's my point: Regardless of what had happened before, and what was going on in other tribunals, isn't the publication of the police records something that should have triggered Hoke/Brandon to revisit the matter (or visit it for the first time)?  How is it not?  The records are very damning.

Hoke and Brandon had access to everything they needed no later than the date the Watchdog published the documents.  It's really reprehensible that they let them pass without action or comment.

State Street

January 29th, 2014 at 6:41 PM ^

Lost in all this fracas:

How the fuck does someone like Gibbons, who had been accused of Sexual Assault and had rumblings on campus of being not-so-great a person, get into one of the best SOCIAL WORK schools on the face of the earth?

This issue is not isolated to the AD or the football team.

Frieze Memorial

January 29th, 2014 at 7:00 PM ^

It's simple, Gibbons hadn't yet been found to have committed assault.  Educators (Hoke as well as the head of Social Work) have to take risks on students ALL THE TIME to be fair to everyone.  Since no charges were filed in 2009, and since the more lenient process at that time cleared him, it was a reasonable risk.  Hoke believed in his player, he trusted him, and he was wrong.  But it is grandstanding to say Hoke should have known better.  It's like being at the roulette table and saying "ooh, you should have bet on black."


January 29th, 2014 at 7:46 PM ^

Are you saying that the School of Social Work should accept or reject candidates based on "rumblings?"  Since he was never formally accused of sexual assault, I know you can't be arguing that he should have been rejected because the police once investigated him, without result, for a crime alleged to have happened four years before he applied.

State Street

January 29th, 2014 at 8:29 PM ^

Institutions of higher learning are even known to check on prospective students social media profiles to see if anything seems "out of whack".

So yeah, having that sort of dark cloud hanging over one's head would be a pretty large red flag for, again, one of the most selective social work schools in the world.

Anybody that has had a class with and/or interacted with this kid could tell you that he didn't get there on his academic merits either.  


January 29th, 2014 at 10:19 PM ^

It doesn't matter what the Coach, or the AD could "arguably" say.  The general counsel advised University employees to say nothing of the sort.  Brady Hoke's comments are entirely appropriate in that light. 

As an attorney, I can tell you that the advice given, in this case the instructions given, were conservative, and deliberately designed to avoid any chance of a suit against the U.  Furthermore, it is likely that the specific terms of injury and family matter were expressly suggested.

I have no problem with this.


January 30th, 2014 at 7:16 AM ^

Lewan didn't threaten the girl. He made a disgusting comment to her friends. It's not any better morally but it goes to the claim he went up to her and said it, which is widely falsely believed. It makes it more of an ignorant comment than an ignored direct intimidation


January 30th, 2014 at 8:33 AM ^

If the account is true, Lewan didn't threaten her to her face, but repeatedly asked her friend whether she was going to press charges, then said that he would rape the victim if she did.

As somebody said upthread, if the mob tells your wife "Geaux better pay up or we'll break his legs," they've threatened you, just not to your face.


January 31st, 2014 at 12:20 PM ^


The incident occurred in 2009, when RR was coach.  What was his response to it?  If we are going to question Hoke's (admittedly ham-handed, possibly lawyer-directed) handling of something he might not have known about until this fall, what about RR's handling of it?


February 1st, 2014 at 12:22 AM ^

Erik, just wanted to add this to the pool of data you're compiling.


The people in various media outlets who are citing language from FERPA which states it doesn't prohibit schools from disclosing information are not reading the entire text of the FERPA sections in issue.  There are two paragraphs relating to a university's ability to disclose information.  Those fall under 1232g(b)(6)(b) (which I'll refer to as section B) and 1232g(b)(6)(c) (which I'll refer to as section C).

Initial reading of section B makes it sound like the university can disclose all kinds of information.  But it is later clarified by the subsequent section C.  
Here's section B.
(B) Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence (as that term is defined in section 16 of title 18), or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution's rules or policies with respect to such crime or offense.
As I said, that certainly sounds like they can disclose all kinds of information.  But that's not the case.  All they are allowed to disclose is the "final results of any disciplinary proceeding".  Section C defines what "final results of any disciplinary proceeding" encompasses.
Here's section C.
(C) For the purpose of this paragraph, the final results of any disciplinary proceeding-
(i) shall include only the name of the student, the violation committed, and any sanction imposed by the institution on that student; and
(ii) may include the name of any other student, such as a victim or witness, only with the written consent of that other student.
As you can see, the only things they're allowed to disclose under FERPA are the name of the student (Brendan Gibbons), the violation committed (sexual misconduct) and the sanction imposed (expulsion).  Beyond that, they can only disclose the name of victims and witnesses but only with the consent of the victims and witnesses.
I was all ready to lambaste the university over their failure to share details and hiding behind FERPA.  But at this point, I believe they're correct in withholding the information.  It looks to me like they're not allowed to disclose any more than what they've already said.