WASHINGTON -- The situation outlined by Miles J. Postema, vice president and general counsel of Ferris State University, sounded like a lawsuit waiting to happen:
The Recording Industry Association of America had served Ferris State with subpoenas demanding the identities of some students who had been downloading music, and the university complied. All the students subsequently settled with the RIAA, but one refused, denying any downloading. The RIAA asked the university to doublecheck, and the student's identity was confirmed. Time passed, and the RIAA sued the student in federal court and asked the university to check one more time. And that's when Postema got the call from the university's IT staff: "We have the wrong person."
The downloading had been traced to the wrong student, an honors student as it turned out, and the student's family had already incurred $15,000 in legal fees. "What are we going to do? We made a terrible mistake," Ferris State officials thought at the time, as Postema recalled Sunday at the annual meeting here of the National Association of College and University Attorneys. Here's what Ferris State did -- instantly: The head of IT went to the falsely accused student's dorm room and personally apologized. Postema called the student's father, apologized, and pledged that the university would reimburse the family for all of its legal expenses.
"He was very understanding and he said ‘You did everything you could’ " Postema said. While he noted that the father was still angry with the RIAA, "that was the end of the matter."
Postema's example illustrated his point here: that colleges and universities might be better off if they were more willing to admit it when they mess up.
There is no shortage, of course, of apologies in higher education -- and Postema reviewed some of them. Lots of colleges are apologizing these days for accidentally releasing Social Security numbers or admitting applicants who should have been rejected. Florida State University's president last year apologized to Samford University for referring to it in a press conference as "a dipshit school." The University of Minnesota last year apologized to Pennsylvania State University for the actions of Goldy Gopher, a mascot, that appeared to be mocking a praying Penn State player.
And sometimes universities are criticized for not apologizing with enough sincerity or emotion -- as when Jackson State University was criticized for simply saying that it was "a mistake" when a contractor demolished a local resident's home, not a university-owned property that was supposed to be torn down. And there are countless examples of college leaders declining to apologize on behalf of their institutions, or of settlements that are reached with aggrieved parties only with the requirement that everyone affirm that no wrongdoing took place.
Postema noted that these apologies (or non-apologies) frequently take place after an incident is public and causing controversy, when an "I'm sorry" early on (accompanied by appropriate outreach and compensation) might have minimized the damage.
When he was in law school, he said, "no one ever talked about the value of an apology," he said. Many lawyers are unsure of "a safe way" legally to apologize and many times "it's too late by the time lawyers are involved."
But that points to a key difference between lawyers for colleges and other lawyers, who may be called only when a fight is escalating. On college campuses, when there is an incident, frequently the legal office "is among the first to be called," meaning that there may be a possibility for an apology before whatever happened must be resolved in court. Postema said that the research is mixed (and minimal) on whether apologies prevent lawsuits. He said that some studies have shown that apologies reduce the chances of a suit, while others have suggested that an apology may make a plaintiff's lawyer get greedy.
In either case, he said that colleges should consider apologizing more not as a legal strategy, but because in some cases it is the right thing to do.
At the same time, he said that just because colleges could apologize more doesn't mean that they should be pushovers.
He cited another example -- stressing that the Ferris State incidents happened far apart -- involving a hockey game. A fan seated behind the goal was struck by a puck that passed through the net designed to catch pucks that fly above the glass around the rink. She suffered five broken teeth (since replaced with caps) and a scar (mild, but permanent) above her lip. Her lawyer announced that she was suing for a sum in "the high six figures or low seven figures."
While many have pointed out that there is risk along with the excitement of sitting in certain parts of a hockey stadium, Postema said that it is possible that the net should have been stronger to prevent a puck from an intense slapshot from flying through, as happened in this case. Still, he said that the university thought the sum demanded in damages was unreasonable. In mediation, an agreement was reached (confidential, but one the university was satisfied with) -- and that happened, Postema said, only after a university official apologized.
"It's easy to become defensive about these things," he said, especially if an opposing lawyer is making demands you think are unreasonable. But he said he considered that there might never have been a legal case if the university had immediately offered to pay her medical expenses. "I've always wondered," he said.
The lawyers in the audience were also encouraged to consider apologies by the other speaker on the panel, Aaron Lazare, a professor of psychiatry and chancellor emeritus at the University of Massachusetts Medical School.
Lazare described the lost energy of those who deserve apologies and the potential for relationships to be rebuilt following sincere apologies. Many have asked him, he said, what prompted him to do the research that led to his scholarly study of the subject, On Apology (Oxford University Press), which, among other things, led to his being a guest on "Oprah."
The roots of his interest, he said, come from a period earlier in his career when he sensed some tensions in his department and determined that the cause was related to an apparent affair between a single assistant in the department and a married professor. He confronted them and they denied the affair, and when he later learned that the reports were correct, "I was devastated." He said he found himself thinking that if they would apologize for lying to him, they could work it out. They never did.
Sincere apologies, he said, make all the difference in the world. He cited (as did Postema) the recent apology from Jim Joyce, the umpire who admitted that he "cost that kid a perfect game," in reference to his bad call this month that did indeed have that effect on Armando Galarraga of the Detroit Tigers.
Lazare warned, however, that just saying "I'm sorry" is not an apology, if not accompanied by an expression of remorse. And he said that the value of apologies is diminished when people give false apologies. He said he doesn't like it when he is turned away from a parking garage by a sign saying "we apologize that there is no more room." Why is he bothered? The garage owners aren't actually sorry -- "they are happy they have no more room."
During his presentation, Lazare's cell phone went off. He apologized for not having put it on vibrate.
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