MPS Sexual Assault Investigations End Without Criminal Charges

At the end of January 2023, Joshua Toler made shocking allegations of sexual misconduct by Mountainair basketball players. Now the findings from the investigations into those allegations are public.

MPS Sexual Assault Investigations End Without Criminal Charges

On June 15, 2023, KOAT posted on its website an article from Investigative Producer T.J. Wilham which alleged that, "[r]eports of a 'rape room,' hazing, players exposing themselves and slapping each other's privates promoted Mountainair Public School officials to cancel a series of basketball games earlier this year." These allegations appeared to imply that the investigation into misconduct at Mountainair Public Schools was ongoing and, at least in part, substantiated.

These allegations did not line up with the facts at the end of a criminal investigation by the New Mexico State Police and a civil investigation by DDSK Group. The New Mexico State Police concluded its criminal investigation in April 2023 without arrests. The civil Title IX investigation conducted on behalf of Mountainair Public Schools (MPS) concluded its investigation without substantiating claims by Coach Joshua Toler and two minor complainants.

Wilham's claims do not match the actual allegations made involving MPS, its athletics program, and its students. However, Wilham's claims offer an opportunity to review the events that led to the New Mexico State Police and DDSK Group investigations, consider the findings made in these investigations, and the federal law underpinning civil rights investigations of this nature.

Internal MPS documents and conversations with Superintendent Dawn Apodaca show that the investigation focused on sexual misconduct allegations made by basketball coach Joshua Toler, Sr., Candace Toler, and two minors who attended MPS, against five minors who attended MPS. No sexual misconduct allegations were made against MPS faculty or staff.

A NOTE REGARDING NAMES: Ethically, there is no reason to name the minors involved in this matter. The Ethics Code of the Society of Professional Journalism (SPJ) states that journalists should "[u]se heightened sensitivity when dealing with juveniles, victims of sex crimes, and sources or subjects who are inexperienced or unable to give consent." Therefore, the two minors making allegations will be referred to as Complainant 1 and Complainant 2. The five minors alleged to have engaged in misconduct will be referred to as Respondent 1 through Respondent 5. While the SPJ's code of ethics is not a legally binding set of ethical rules for journalists, its code is a valuable set of moral guidelines to follow.

The Toler family began the investigative process on January 31, 2023 when they requested a meeting that day with MPS High School Principal Jennifer Vigil and Superintendent Dawn Apodaca. At this meeting, Coach Toler and Complainants 1 and 2 made allegations of sexual abuse against Respondent 3 over the course of the football and basketball seasons during the 2022-2023 academic year, then provided narratives that named the other respondents they alleged were involved in sexual misconduct. As noted above, Wilham reported that there were numerous hazing incidents over multiple seasons for the football and basketball teams. Wilham's reporting does not match the allegations made by the Toler family, which focused on alleged misconduct by high school basketball players over the course of one academic year.

Over the course of the NMSP and Title IX investigations, the allegations against the five respondents gelled into the following claims:

  1. Respondent 1 allegedly participated in holding down Complainant 1 when they were traveling in a school bus and then jabbed his fingers in Complainant 1's butt. Respondent 1 also allegedly exposed his genitals to Complainant 1.
  2. Respondent 2 allegedly slapped Complainant 1 on the buttocks on repeated occasions.
  3. Respondent 3 allegedly masturbated in front of Complainant 2 and allegedly stripped naked and "humped" a bed while moaning the name of Complainant 2's girlfriend in front of Complainant 2.
  4. Respondent 4 allegedly participated in holding down Complainant 1 when they were traveling in a school bus and then jabbed his fingers in Complainant 1's butt.
  5. Respondent 5 also allegedly participated in holding down Complainant 1 when they were traveling in a school bus and then jabbed his fingers in Complainant 1's butt. Complainant 1 also alleged that Respondent 5 flashed his penis in Complainant 1's face.

The January 31, 2023 meeting between Coach Toler, his wife, Complainant 1, Complainant 2, and the MPS superintendent and high school principal was the first time these allegations had been made in any form. They led to a flurry of activity, with the New Mexico State Police starting its criminal investigation into the allegations. On February 1, 2023, Coach Toler resigned as MPS middle school basketball coach. Internal MPS documents assert Toler said, "I don't want this covered up by Mountainair. The only time the district contacted state police was now because I have an attorney." It is unclear whether the Tolers, Complainant 1, or Complainant 2 have retained attorneys.

On February 6, 2023, Superintendent Apodaca asked Coach Toler if he wanted to file a Title IX Complaint. Toler declined, and Apodaca decided that MPS would conduct its own Title IX investigation into the allegations. (The Mountainair Dispatch left messages for both Joshua and Candace Toler regarding this investigation, and is still awaiting a response from them.)

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MPS retained DDSK Group of Glorieta, New Mexico, to conduct its Title IX investigation into the allegations. It also retained T. Zane Reeves, Ph.D, a mediator from Albuquerque, New Mexico, as a "Title IX Decision Maker" who would review the results of DDSK Group's investigation and make findings as to whether the respondents violated MPS rules or Title IX. In other words, while the NMSP was conducting its criminal investigation, MPS had retained DDSK and Reeves to conduct a corresponding civil investigation.

What is Title IX?

WHAT IS TITLE IX? Title IX is the commonly used name for the Higher Education Amendments of 1972, 20 USC § 1681, et seq. (Latin, effectively "and so forth") a federal law in the United States that prohibits sex discrimination in education. Enacted in 1972, it ensures equal opportunities for all students and promotes gender equity in educational settings, including public high schools. While Title IX covers various aspects of education, one significant area where it plays a crucial role is addressing allegations of sexual misconduct.

Under Title IX, any public high school that receives federal funding is required to take prompt and effective action to address sexual harassment, including allegations of sexual assault. This applies to both student-to-student incidents and cases involving school faculty and staff. Sexual misconduct is considered under Title IX to encompass a range of behaviors such as sexual assault, harassment, dating violence, and stalking.

When allegations of sexual misconduct arise in a public high school, the school must respond promptly and thoroughly. This typically involves conducting a fair and impartial investigation into the allegations. The school is responsible for providing a safe and supportive environment for the individuals involved, which includes taking appropriate actions to identify whether misconduct occurred, stop the misconduct, prevent its recurrence, and address its effects.

Schools are expected to have clear policies and procedures in place to handle reports of sexual misconduct. These policies should outline the reporting process, the investigation procedures, and the potential disciplinary actions that can be taken against the alleged perpetrator. Additionally, schools must ensure that survivors of sexual misconduct have access to necessary support services, such as counseling and accommodations, to ensure their educational experience is not disrupted.

Title IX also requires schools to provide training and education programs that promote awareness of sexual misconduct, consent, bystander intervention, and other related topics. By fostering a culture of prevention and accountability, schools aim to create a safer environment and empower students to report any incidents of sexual misconduct.

In cases where a school fails to address allegations of sexual misconduct appropriately, individuals can file a complaint with the Office for Civil Rights (OCR) within the U.S. Department of Education. The OCR investigates these complaints and takes necessary actions to ensure compliance with Title IX.

Overall, Title IX serves as a tool for addressing allegations of sexual misconduct in public high schools, regardless of whether allegations are against faculty or students.

In a June 22, 2023, interview, Superintendent Apodaca said that there were mechanisms in place for someone who believed that a Title IX violation had occurred to report that violation anonymously to New Mexico's Child, Youth & Families Department (CYFD), a claim that is corroborated on CYFD's website. As CYFD makes clear, educators - to include coaches in Mountainair's athletic department - are mandatory reporters who have a duty to immediately report allegations of sexual misconduct that victimize a minor.

One question that had been raised was why Coach Toler did not report these sexual assault allegations in 2022, when he said they had begun. Before January 31, 2023, Coach Toler had not reported any allegations against students. Toler's decision to not report puzzled basketball coach Azan Chavez. "If any of this is true," MPS documents recorded Chavez saying, "Why did you wait so long? You are a mandatory reporter; you have a duty to report." According to MPS records, school athletic coordinator Consuelo Brazil confronted Coach Toler and his wife regarding why they did not report these sexual assault allegations when they purportedly began in 2022. Coach Toler allegedly responded that he chose not to do so despite being a mandatory reporter because Complainant 1 asked him not to report it.

Abandoned Schoolbus, Encino, NM, by Todd Brogowski, Mountainair Dispatch

DDSK Group and Reeves - as well as Superintendent Apodaca - considered Coach Toler's claims that respondents jabbed Complainant 1 in the butt to be dubious, considering the position of adults on the school bus. Toler testified he sat in the back of the bus, near Complainants 1 and 2. Coach Chavez testified he sat in the middle of the bus, at the spot where the girls team ended and the boys team began, where he used a flashlight to shine on his players if he heard a disturbance at night. At the front of the bus, testified Athletic Director Brazil, she sat with girls basketball coach Adrienne Bargas. None of the adults' testimony indicated they heard yelling or witnessed boys hazing each other. Bus driver Kevin Reese testified, if a student were held down, screaming while being sexually assaulted, he or one of the other adults on the bus would have heard. "A kid can't fart on the bus without the others yelling...," Reese said.

With respect to the allegation that Respondent 1 exposed himself to Complainant 1, testimony of Coach Chavez described the event happening at a cabin used by the team during one of the basketball tournaments, although not as described by Coach Toler and Complainant 1. Chavez testified that Respondent 1 realized after showering that he had forgotten his towel, so Respondent 1 ran naked from the common restroom showers to his bed. Chavez said he reprimanded Respondent 1 for doing so. Chavez also reported no concerns raised to him about the incident from Complainant 1 and Coach Toler.

Based on testimony taken by the Title IX investigator, Reeves determined that there was insufficient evidence to support claims that Respondent 2 slapped Complainant 1 on the butt.  Reeves also determined the allegations concerning Respondent 3, that he masturbated in front of Complainant 2 and humped his bed while saying the name of Complainant 2's girlfriend, were unsubstantiated and lacked any supporting testimony. Respondent 3 noted in his testimony that these acts would have been witnessed by the team and the coaches had they occurred, as they stayed in locations with open bay sleeping during these tournaments.

According to New Mexico State Police Lieutenant Mark Soriano, at the conclusion of the New Mexico State Police investigation, the New Mexico State Police decided to not charge anyone based on the Toler family's allegations and considered the case inactive. Soriano wrote in an email dated June 15, 2023 that the matter had been declared inactive and he said that the 7th Judicial District District Attorney's Office was reviewing the case file, which is a typical final step in a case before it is considered resolved (barring discovery of new evidence in the future).

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