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The Virtues of Contrition

November 10, 2010

When a tragedy occurs on campus, the response that typically follows is both familiar and lamentable -- the college promptly assumes a defensive crouch and refuses to comment. Sometimes, the silence follows a need to assemble all the facts. Other times, it is to lessen a college's exposure to a lawsuit.

And so it was all the more striking, say observers, that the Rev. John I. Jenkins, president of the University of Notre Dame, issued an open letter last week apologizing for the death of a student the week before.

"There is no greater sadness for a university community than the death of one of its students under any circumstances," Father Jenkins wrote, regarding the death of Declan Sullivan, 20, when the rig on which he stood to videotape football practice blew over in gusting winds on Oct 27.

"Declan died in a tragic accident while in our care. For that, I am profoundly sorry," Father Jenkins continued. "Declan Sullivan was entrusted to our care, and we failed to keep him safe. We at Notre Dame -- and ultimately I, as president -- are responsible. Words cannot express our sorrow to the Sullivan family and to all involved."

Colleges have been known to apologize after traumatic or terrible incidents. Duke University's president issued a mea culpa to the university's lacrosse players who were falsely accused of rape, and the University of Arizona's president apologized to students and staff (though not, at first, to the professors involved) after two black faculty members were handcuffed by campus police, to name two examples. But such expressions of contrition typically come months, if not years, after the incident happens, and can follow drawn-out litigation.

In contrast, Father Jenkins's open and clear acknowledgment -- especially at this juncture -- is rare, said Ada Meloy, general counsel for the American Council on Education. "I think this is a refreshing thing for the president to do," said Meloy, who added that such statements typically follow a consultation with a lawyer and trustees. "I’ve taken the view that this is a better way to go than to hide behind the idea that, by admitting something, you’re causing a problem or making things worse."

The facts leading up to Sullivan's death are still being established via two investigations: one internal and the other by the Indiana Department of Workforce Development. It is not clear when either will be completed, according to spokesmen for the agency and university.

Father Jenkins said that Notre Dame will forward the findings and recommendations from its investigation to a third party, Peter Likins, former president of the University of Arizona, for vetting. Likins, as it happens, was the president at Arizona who apologized in the wake of the handcuffing of its professors in 2003. Father Jenkins also said that the facts revealed by the investigation and recommendations for changes in safety procedures will be made public.

While investigators are completing their work, news accounts have recounted a common sequence of events (the linguistically demure may wish to skip to the next paragraph). Sullivan was perched 50 feet high, atop a hydraulic scissor lift, to videotape football practice, despite winds in the area gusting to 51 miles per hour. Several news outlets recounted how Sullivan attested, via Twitter, to his increasing sense of danger: "Holy fuck holy fuck," he reportedly posted as he was on the rig. "This is terrifying."

Father Jenkins's apology arrived after considerable criticism. It came on a Friday (this timing, thought by some to garner minimal media attention, also produced a measure of scorn), was delivered nine days after the incident, and followed initial characterizations by Athletic Director Jack Swarbrick that the tornado-like weather that day was "normal."

In choosing to apologize, Father Jenkins and other Notre Dame leaders may have felt an added responsibility due to the university's religious mission, said Ann H. Franke, who consults with colleges nationally on issues of risk management. "I personally find it impressive," Franke said of Father Jenkins's letter. "It can be an ethical stand to accept responsibility when something goes wrong, assuming the facts lead to that conclusion." Such an acceptance also can serve both the victims and their family, as well as the college, she added.

How it will play out between the university and the family remains to be seen. Notre Dame declined to comment on the motives for the apology or the process by which it was decided, according to Dennis Brown, spokesman for the university. Father Jenkins issued his statement after meeting personally with Sullivan's family. He lauded the Sullivan family's "incredible grace and courage," which, he added, "has given us support and an example of how to respond. They ministered to us as we tried to minister to them."

Sullivan's uncle, Mike Miley, told the Chicago Tribune that the family was grateful for the support of the Notre Dame community, but declined to comment on Father Jenkins's statement because the family does not want to interfere with the investigations under way.

It is also unclear how risky the president's statement of remorse and personal responsibility will prove to be, when litigation could follow. Forbes estimated that Sullivan's death could cost Notre Dame $30 million or more if the university is found to be negligent, and compensatory and punitive damages are awarded. Then again, Father Jenkins's apology also could limit financial damage. His choice reminded several observers of the recent shift in approach, in some quarters, to medical malpractice. Thirty-four states have adopted laws allowing medical professionals to express empathy and feelings of grief -- and in some cases to apologize to patients or their family members -- without their words being used against them in court, according to the organization Sorry Works, which advocates for such laws.

An analysis of how this approach has played out in Michigan, where the University of Michigan's Health System since 2001 has fully disclosed and offered to pay patients for medical errors (but where there is no apology protection law), suggests that adopting this posture can be beneficial to both sides. Researchers from the University of Michigan Health System and Brigham and Women's Hospital, among others, observed a drop of nearly two-thirds in the number of legal claims filed after the change was adopted. While the study's authors cautioned that the link between the new approach and the subsequent drops could be not called causal, they also noted that disputes reached resolution more quickly, in the period after the change was made, and the amount of money paid out in legal costs and patient compensation plummeted 60 percent.

Taking the position that apologizing is better than stonewalling also may be in keeping with how people truly respond to tragic or even unthinkable events, such as the death of a child, said Peter F. Lake, professor of law at Stetson University in Tampa, Fla. "So often, people think that families want money and punishment for something that happened," said Lake. "In fact, what happens a lot of times is that families want compassion, care, and even an apology: a heartfelt sincere statement that 'I’m sorry.' It’s a remarkable thing."

Lake, an expert on torts and co-author of the book The Rights and Responsibilities of the Modern University, said such statements can be particularly effective in the context of higher education because of its prevailing culture. "We are a culture that constantly searches for meaning in events," he said. “I firmly believe that when a young person dies or is seriously injured we have to construct some way to give meaning to the event so that that death or that injury was not in vain."

Meaning may take the form of increased scrutiny of student workplace safety, Lake predicted. "Our kids are working their tails off," he said. "To get through college they’re working two jobs at late hours in tough conditions.... Is it valuable to their education and is it safe enough?"

The outpouring of grief on the Notre Dame campus following Sullivan's death provided an example of that search for meaning on an even more basic level. "It's so hard to think and try to process the reality that Declan is gone," Shane Steinberg, who was Sullivan's roommate, wrote in The Observer, a student newspaper at Notre Dame. "How do we remember someone who made such an impact on our lives when deep down it doesn't feel like he's gone, perhaps because the shock of it all makes us cling to the hope that he'll poke his head through the door?"

To some, however, the person most responsible for Sullivan's death is not Father Jenkins, but the head football coach, Brian Kelly. "A coach’s most important job, particularly at the amateur level, is to take every reasonable precaution to ensure the safety of the young people under his control. Kelly failed in the worst way possible," wrote Jason Whitlock, a columnist for FoxSports.com, who has called for Kelly's ouster. “This is worse than a recruiting violation or a sex scandal or even academic fraud. This is a 20-year-old kid who lost his life when he absolutely didn’t have to. This is a fundamental failure.”

Notre Dame's football coaches have been fired for less. In 2001, George O’Leary was dismissed five days after being hired for exaggerating on his resume.

In his statement, Father Jenkins stood by his current coach, saying he had a "bright future" leading Notre Dame's program. "Coach Kelly was hired not only because of his football expertise, but because we believed his character and values accord with the highest standards of Notre Dame," said Father Jenkins. "All we have seen since he came to Notre Dame, and everything we have learned in our investigation to date, have confirmed that belief."

 

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