Editors note: This story has been updated to accurately reflect the status of the Adams vs. the school board of St John’s County case.
On a rainy Feb. 10, Evana Bogle hurried to the Office of Equity, Inclusion, and Compliance. She had been referred there by the Center of IDEAS, as well as the Dean of Students. This was her one day to tell the school what happened on Jan. 29, 2020. Upon arrival, she sat in a meeting room with no windows. Her girlfriend, Alyssa Ferraioli, was not by her side – she had a separate interview later. Across from her sat two EIC investigators.
As Bogle told them her story, her hopes of justice rose – justice for she and Ferraioli, who both contend they were removed from the FAU Club Cheer Team (not affiliated with the FAU spirit team) by Head Coach Ricky Alvarado for being lesbians and in a relationship with each other.
“We sat in there with [EIC investigator] Ruba Kanaan and she thought we had a solid case. I asked her what if Ricky says this, or says that, and she told me that wouldn’t make any sense,” Bogle said over the phone.
“We really believed we would win,” Bogle said.
Their complaint was dismissed. According to the couple, the EIC office concluded that the facts were too insufficient to corroborate their allegation. Still, Bogle insists Alvarado told her that she and Ferraioli were kicked off the team because “you’re a lesbian and a lot of the girls are uncomfortable with it.”
A friend then posted a petition on Change.org calling for the firing of Coach Alvarado. The petition drew more than 500 signatures, but the women say they received hateful messages from some teammates and felt they were given the silent treatment from their former cheer members.
Six months after that rainy Monday, the investigation into Alvarado has been opened and closed twice. During that process, the women said they were told to sign a Non-Disclosure Agreement (NDA), which means they cannot share, copy, or publish the report. If FAU investigated their complaint under Title IX, an NDA would have been illegal, according to the interpretation of Title IX by the US Department of Education.
Both Bogle and Ferraioli insist that the investigation was handled under Title IX protocols, due to what they saw on their investigation files.
When asked if the investigation was handled under Title IX, FAU Title IX Coordinator Donald Kamm said through an FAU spokesperson, “We do not comment on cases due to [the Family Educational Rights and Privacy Act].”
Kamm later said, “The EIC conducts investigations involving allegations of discrimination or harassment in accordance with University Regulation 7.008 and University Policy 1.15. As stated in Regulation 7.008, paragraph B, University Regulations and Policies prohibiting unlawful discrimination or harassment apply to all registered student organizations.”
EIC Investigator Ruba Kanaan was also asked for comment, but the University Press was told via an FAU spokesperson, “All investigations in the Office of Equity and Inclusion are conducted consistent with applicable law, regulations, and policies, including FAU Regulation 7.008 and University Policy 1.15.”
Mike Hiestand, Senior Legal Counsel of the Student Press Law Center said, “NDA’s, Gag orders, they’re clearly not allowed by Title IX. [The National Board of Education] recently came out with updated regulations that made it even more clear.”
No current athletes on the Club Cheer team responded to requests for comment. When the University Press reached out to Alvarado for his response, Alvarado replied, “I take great pride not only in the job I perform as a coach, but also the role I play in each of my athletes’ lives. I am proud to say that each team I have been on or I have coached has been very diverse, with that said the teams have also been very inclusive.”
RELATIONSHIP BEGINNINGS, AND OCTOBER AND JANUARY TRYOUTS
Bogle and Ferraioli’s relationship began in August of 2019, around the same time Bogle made the cheer team. The pair knew each other well, having previously both attended Ocean County College in Toms River, New Jersey. As they began dating, Bogle’s standing on the team didn’t change.
“[Former Club Cheer teammates] were all very, very nice to me when I first met them, they saw me for what I was,” Bogle said.
Bogle and Ferraioli both were successful before joining the FAU Club Cheer Team.
At Ocean County College, Bogle and Ferraioli were on the cheer team that won first place at the National Cheerleaders Association National Competition in 2018.
In addition to that, Bogle was a part of the team that won first place in the Coastal Cheer and Dance in 2016 and Mid Atlantic Cheer Company in 2015. Ferraioli has multiple years of experience cheerleading from high school, as well as the victory in 2018 with Ocean County College.
Once Ferraioli began to try out for the club cheer team at FAU in October, Bogle said she noticed a shift in how both she and Ferraioli were judged by the cheer coaches.
According to FAU’s Club Cheer team announcement on Instagram, athletes who were previously on the team have to re-try out to make the team the next semester, therefore Bogle had to try out despite making the team earlier.
Bogle was asked to do a basket toss, which is a group activity where three or more members toss a cheerleader into the air. The stunt is a move Bogle has done before successfully, but recently, she injured herself doing the skill.
Bogle and Ferraioli state that coach Ricky Alvarado was extremely hard on Bogle, behavior that was out of the ordinary for him. Bogle says that there were “several incidents” where Alvarado caused Bogle to cry during practice due to nerves from being forced to perform skills that she previously injured herself on.
However, once Ferraioli left Boca Raton and went back to New Jersey (she wasn’t a current student that fall, but would enroll at FAU in the upcoming spring), Alvarado’s behavior went back to normal according to Bogle and Ferraioli, and Bogle remained on the team.
When January tryouts began, however, Bogle and Ferraioli said they were both given only one opportunity to do one group drill, despite being on the team previously. This shocked the two women, especially Bogle who stated that she expected to do a solo drill.
According to Bogle, when she first tried out, she was allowed to attempt drills “as many times as necessary.” Ferraioli said that after her previous tryout in October, the coaches told her that she was going to be on the team in January when she planned to enroll. Ferraioli went to the tryout and would do drills “on the spot,” as she states. She was not put on the team.
Despite not making the team, Bogle went to Alvarado to ask why it specifically didn’t work out. Bogle said that in her conversation with Alvarado on Jan. 29, 2020, that she worked at every FAU Club Cheer fundraiser to raise money and represented the team regularly at WeLead conferences, according to a reconsideration document which called for the EIC office to review the investigation and change the verdict of the case.
She also provided teammates with workout ideas and drills, as well as attending every practice, which made her believe she was a shoo-in for the team. Alvarado then explained that it was because of Bogle’s attitude, or “resting bitch face,” according to Bogle. Then, according to the document, Alvarado told Bogle that she and Ferraioli were kicked off the team because “you’re a lesbian and a lot of the girls are uncomfortable with it.”
TAKING THE INVESTIGATION TO THE EIC OFFICE
After her conversation with Alvarado, Bogle and Ferraioli went looking for support, and a way to file their complaint. They found their way to the EIC Office, where they first spoke to Victim Advocate Candace Harrinarine, who, according to Bogle, talked with her and Ferraioli’s professors about their absences from classes. The EIC office would be, “very thorough,” Harrinarine told Bogle and Ferraioli. From there, EIC Investigator Kanaan took over the investigation.
After the first interviews both Bogle and Ferraioli did, they believed that the investigation wasn’t being handled fairly from their side.
“They really were asking me questions about the team, and the problem wasn’t with the team. There was no interpersonal drama,” Bogle said.
Ferraioli says that after their separate interviews with the EIC office, they weren’t given any information on the progress of the investigation: “We would email them to ask about where they were in the investigation because we wanted to know what the next step would be.”
Although the women believed they were being interviewed unfairly, they were reassured that their investigation would be solved and the university would take action against Alvarado.
In emails Bogle provided to the University Press, the EIC office had conversations with Bogle and Ferraioli on Feb. 6 and 18, then later on March 6. From there, a near two-month lapse in communication occurred until April 27.
According to Donald Kamm, standard EIC investigations begin with the first meeting.
“During the first meeting with a participant in any investigation, the participant is interviewed and informed that they may contact the investigator at any time during the investigation to provide any additional information or evidence,” Kamm said. “Notes from the interviews are sent to the participant to verify the information.”
The EIC closed their investigation and refused to investigate further due to “insufficient facts to prove that Regulation 5.010 was violated,” according to a petition started in June on behalf of the two women. This same petition, which at the time of the writing of this story has 540 signatures, calls for the firing of Alvarado.
The day after the petition was posted, the two women received a call from the EIC office, saying that in order to see their investigation, they have to turn in their NDA, which they previously signed in May.
The NDA, according to Cornell University’s School of Law, would prohibit Bogle and Ferraioli from speaking about specific information regarding the case and block them from disclosing the information to others without authorization.
The two women then proceeded to fill out two separate reconsiderations – which is a type of appeal – for their case to be reopened and re-evaluated. The women had 10 days to file the reconsideration, then the EIC had 20 days to respond after the submission, according to Bogle.
On July 23, 2020, the EIC Office rejected both reconsiderations, citing Bogle and Ferraioli had “a personal issue with the investigation.”
“After the reconsiderations were rejected, I felt devastated,” Ferraioli said. “It felt like I had been betrayed by FAU and the EIC Office.”
ALLEGATIONS OF WRONGDOING
According to Bogle and Ferraioli, the FAU EIC Office told them to sign the NDA without explaining why. If this was a Title IX investigation, this would violate Federal Title IX Law, according to Frank LoMonte, Director of the Brechner Center for Freedom of Information and Professor at the University of Florida.
On FAU’s website, Regulation 5.010, (the regulation cited as to why Bogle and Ferraioli’s cases were rejected) covers Title IX of the Education Amendments Act of 1972 (“Title IX”). According to Mike Hiestand, Senior Legal Counsel for the Student Press Law Center, NDAs are banned.
“It’s a terrible, terrible policy and it absolutely shouldn’t be done with any type of harassment or discrimination complaint, whether it’s Title IX or not, because you’re potentially hampering those people from seeking aid,” LoMonte said.
According to Bogle, there was no reason given as to why they had to sign an NDA by the FAU Office of EIC. The two women claim that the investigation was handled under Title IX law. Also, as previously stated, an NDA forces the person who signs to remain confidential about the investigation, not allowing the signee to talk about the investigation.
When asked about the NDAs, Kamm said through an FAU spokesperson, “In order to maintain the confidentiality of that record in accordance with FERPA, students who elect to view the report digitally are required to sign a document agreeing that they will not duplicate or distribute the report.”
Kamm also said this is a temporary procedure that doesn’t restrict students from speaking about matters in which they are involved. “Due to the University’s remote operations in response to the COVID-19 pandemic, students are now being offered digital access to the investigation report, which they would typically be allowed to view in the EIC Office.”
If this investigation is a Title IX investigation as the documents provided by Bogle and Ferraioli claim, LoMonte says that FAU violated federal law by having them sign an NDA, because the US Department of Education explicitly bans colleges and universities from forcing victims to sign away their confidentiality.
FAU also may have violated the Family Educational Rights and Privacy Act, or FERPA rights, according to Bogle and Ferraioli’s claim of not being able to view the case documents.
According to both Bogle and Ferraioli, once FAU’s Office of EIC closed their cases, they were not allowed to view the documents or records of the investigation. They should be able to, based on their rights protected by FERPA, LoMonte said.
According to LoMonte, FERPA should guarantee their rights to view the documents after the case has been closed. “You can’t tell a person who files a complaint ‘here’s your one-and-only chance to see the report, you have 20 days, and then it’s gone forever’,” LoMonte said in an email.
With all this evidence compiled, both Bogle and Ferraioli should have been able to see their case files, even after the 30-day window the EIC gave them closed, because their rights under FERPA dictate that if a student wants to see their records, the institution has to release them.
Until recent interpretation by the Supreme Court, LGBTQ protection was a large topic of discussion. Then, on July 17, 2020, the Supreme Court ruled that discrimination against someone based on sexual orientation violates Title VII of the Civil Rights Act of 1964. In the Bostock vs Clayton County case, Supreme Court Justices ruled 6-3 in favor of discrimination based upon sexual orientation unconstitutional.
In the case of Title IX, Rand Hoch, founder of the Palm Beach County Human Rights Council, says that discrimination against students based on sexual orientation is violating Title IX law in Florida. Hoch cites Adams v. The School Board of St. Johns County (St. Augustine, Florida), a case currently pending before the 11th Circuit of the Court of Appeals, as one where Title IX is being reviewed for protection for LGBTQ students. The case, which came to an end in August, saw plaintiff Drew Adams win his case and allow transgender students to use the restrooms that match their gender identity
“[Title IX] has become very politicized,” said Shane Windmeyer, executive director and founder of Campus Pride, a national nonprofit organization working to create safer college environments for LGBTQ students.
Windmeyer continued, “Under the Obama administration, it was pretty clear that Title IX included transgender as well as LGBTQ under the definition of gender. What has happened in the Trump administration is a lack of enforcement as well as a redefining of what Title IX means.”
Windmeyer said that under current US Secretary of Education Betsy DeVos, the understanding of Title IX under President Obama is not the current understanding, and hasn’t been enforced.
Bogle states that since the investigation started, she has only been contacted by one former teammate, but the teammate has sent over ten “hateful messages” over Snapchat and Twitter. Bogle said the teammate even contacted the creator of Bogle and Ferraioli’s petition to send hateful messages, calling their claims, “a joke,” and insinuating that the two women are, “creating an issue that never existed.” Bogle and Ferraioli have received hate from friends of Alvarado as well, who would deny the claims made by the couple on social media.
“I had to block a lot of them [former teammates] on social media because of the harassment we were facing,” Bogle said. Bogle went as far as to say that some athletes currently on the team would shun the two women, not talking to them, even as Bogle has conversations with a former teammate with whom she is still in contact with.
The two were, according to the couple, excluded from group messages, and often singled out for being in a relationship together. When asked by the University Press about these allegations, seven members of the FAU Club Cheer Team and an assistant coach declined to comment via email, Instagram, Facebook, or Twitter messaging.
Bogle and Ferraioli cite their close bonds with family and close friends outside of the team as coping mechanisms through the four months of no communication.
“We have some really close friends to us who have been here for us the whole time,” Bogle and Ferraioli said. “They helped us with the reconsideration, they looked it over with us. Our parents and professors helped us too,” Bogle added.
Despite the harassment and events that happened throughout the entire investigation, Bogle and Ferraioli say that there’s not much they would do differently if they could do it over. “I think I would have solidified my friendships more, I think if I could go back in time, I would make sure that I had people on my side to back me up. At the end of the day, all I can control is myself, there’s no possible way I could have known that they were going to treat us like this, that they were going to let us down like this,” Bogle said.
“As far as I’m concerned, we did the right thing.”
Joseph Acosta is the Managing Editor of the FAU University Press. For more information regarding this story or any other stories, email at [email protected], or tweet him @acosta32_jp.