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Bev Kearney's Attorney Ratchets Up The Pressure On Texas Administration

Alleges 10+ inappropriate incidents at Texas between UT staffers and subordinates; "normal culture" at UT. How will a vulnerable UT administration respond?


That allegation from Kearney's attorney according to the SA Express.

The EEOC has 180 days to investigate her claim of gender and racial discrimination before Kearney and attorney, Derek Howard, can sue. Which they intend to do.

The money quote:

Howard said he has knowledge of "in excess of 10" inappropriate relationships between UT staffers and subordinates. He said such relationships are "part of the culture" at UT and that none of the staffers involved have been subject to the same treatment Kearney received when the school discovered last fall she'd had an affair with a student-athlete in 2003.

Mind you, his claim potentially includes all of the University of Texas - not just the Athletics department. Nevertheless, there are some nervous administrators in Bellmont Hall right now. Because there may be some fire for this smoke.

What is important to note, though, is that a plaintiff's attorney job is to prepare the ground for battle, preferably through a media that will report accusations as fact and potentially partner in fanning the flames. Particularly at a time when Texas is experiencing on and off-field woes in the Athletics department - making fans more receptive to sordid tales. Most crucially, it's a powerful tool - an unknown X Factor - against a vulnerable school President facing a witch hunt from pro-Sandefer Board of Regent appointees, who will be only too glad to use this as ammunition and evidence of a lack of institutional control. So the stakes here are bigger than bread n' circus. And that plays well into Kearney's hands - whatever the merits of the accusation.

Similarly, it's a reasonably good bet that the plaintiff's attorney is being less than forthcoming - the phraseology "10+" being your first tip, and that he's an attorney, your second. That remark does not apply to Barking Carnival's attorney contributors and readers who, through their participation here, demonstrate their own discernment and good character.

Back to the article:

The key to Kearney's case will be proving she was treated differently on the basis of her race (she is black) or her gender. Malinda Gaul, a San Antonio attorney who has spent more than two decades handling employment cases, said the EEOC has the option of taking sworn statements from staffers accused of being involved in similar relationships.

If such relationships are proved to have existed, the circumstances around them will be compared to Kearney's case.

"Is there a significant difference there?" Gaul said. "They will have the burden of proving that someone at her level did the same thing and didn't have adverse action taken against them."

Kearney is going for the lawsuit hat trick of social grievance: race, gender, and sexual orientation. Because, why not? It also serves some strategic value. It increases the likelihood of attention from various watchdog groups or media more interested in available platforms than facts and gives her more avenues to explore in the investigation. I suspect they'll make little headway with respect to discrimination against race or sexual orientation claims.

Gender might be trickier because Kearney and her attorney may be able to suggest that although it may not have been that Kearney's race or sexual preference that caused asymmetrical treatment, she was heading a non-revenue women's sport, which can be judged more harshly than revenue producing ones (read: male) - specifically, football, basketball, and baseball. Are high earning male sports subject to more leeway and less scrutiny? Maybe.

And if she can show that her peers - both current and former - or her own bosses - were guilty of indiscretion(s), then what was she to do but emulate their example? The normalization of culture piece is also the key part of their argument. Without it, they have no real chance. Because Kearney violated clear policy. And doesn't deny it. Because Kearney's relationship was relatively brazen, and "known" (socially, if not formally) to have gone on for some time, she must contend and convince a jury that this was a "normal part" of Texas culture both inside and outside of the athletic department, the "Code Red" argument in A Few Good Men where prosecutor Kevin Bacon challenges a young Marine to point to a Code Red in the Marine Code of Conduct. When the Marine offers that no such thing exists, Tom Cruise redirects by asking how he managed to get to the mess hall since that wasn't covered there either. "Well, I just followed everyone else..."

And yes, you should be alarmed that all of my law training is from Rob Reiner movies.

Kearney's case probably can't pass go until she establishes that normalcy of culture argument. And that's where it gets sticky for Texas as she turns over every sordid stone - relevant to her case or not - to do so.

So what's the real end game here?

Discomfort. My guess - completely unburdened of any legal knowledge and not really sure of the difference between a tort and a tart - is that Kearney sees an opportunity to exploit Texas at a vulnerable time. Public pressure applied constantly on hot button societal stress points of race, gender, and sexuality in a time of administrative turmoil, the possibility for a lot of embarrassment in Bellmont amongst her bosses and colleagues, and, an entire mission of the university potentially at stake as the larger backdrop, may offer a nice opportunity for a "Please Go Away, Even If We Think We'd Win" settlement, which the Cleve Bryant buffoonery taught everyone that UT is all too willing to pay.

And that's my uninformed take...