When in Doubt, Investigate
The last two years have seen a rash of scandals at high-profile college football programs. Ohio State is banned from a bowl game next season and forfeited all of its wins from the 2010 season because former coach Jim Tressel failed to report that a number of his players were trading jerseys and other Buckeyes memorabilia for tattoos and cash. The University of North Carolina’s football program lost its coach, 15 scholarships over three years and the possibility of a 2012 bowl appearance because of major NCAA rules violations. USC ... the University of Miami ... the University of Arkansas and Bobby Petrino ... and, most prominently, Penn State.
Such serious problems are not confined to college sports. Thirteen people were recently charged in the hazing death last November of a member of the Florida A&M marching band, amid reports that the band had a “culture of hazing.” In 2007, the president of Eastern Michigan University was fired after a female student was killed in her dorm room, and the administration inaccurately informed the student body at the time of the incident that there was no evidence of foul play, even though it was immediately clear that her dorm room was a crime scene. As a result, student safety was jeopardized and the Department of Education fined the university heavily for violating the Clery Act.
There are two main lessons to be learned from this litany of scandals. First, no one is bigger than the institution itself. If Joe Paterno can be brought down, anyone can be. Second, deal with your problems; don’t bury them. The common thread among these scandals is that none of them had to happen, or at least blow up as they ultimately did. Coaches and administrators cannot prevent every problem, but they usually can contain them, and each of these could have been nipped in the bud in they had been investigated and addressed properly at the outset.
There is a human tendency to cover up one’s mistakes and hope no one will notice, or to ignore that little voice inside saying that something is amiss, not believing there is a problem, or hoping it will go away. This natural inclination tends to be exacerbated in close-knit communities, like a college, or a sports team, where handling things “in the locker room” is seen as a team-building virtue.
Whatever benefits this attitude otherwise might have, it can lead to isolation and a distorted sense that everything must be handled quietly or swept under the locker-room rug. To the extent this strategy was ever successful, those days are over. Smart phones have made everyone an investigative reporter, and You Tube has eliminated the concept of local media. Your dirty laundry will be aired.
In this environment, it is essential to investigate anything that raises suspicion of illegal conduct, a rules violation, or sexual misconduct. Where the concern involves sexual violence, Title IX requires an investigation. But even when it is not legally required, conducting a sound investigation can be critical to providing the institution informed reassurance or protecting it from calamitous consequences. If in fact the concerns are validated by the investigation, they can be handled swiftly and appropriately, and the public fallout, to the extent there is any, will be short-lived and include the fact that the institution responded proactively. If, on the other hand, the investigation “clears” those involved, a cloud of suspicion is lifted. The investigative report can be cited by the institution to demonstrate that it looked seriously into the matter should something blow up later.
An investigation need not be large or expensive. It only needs to be sufficiently thorough -- based on the nature of the issue, the level of evidence, and the severity of the potential consequences – for the institution to be confident it understands the situation and to take action (or no action) accordingly. However, when dealing with high-profile faculty or sports programs, when an institution’s management team might be involved in the suspected wrongdoing, or when confronting a particularly delicate issue, it is advisable to engage an outside entity to conduct the investigation.
There are several advantages to proceeding this way. An outside investigator will not be constrained, consciously or unconsciously, from giving an unvarnished report due to institutional biases, personal or professional relationships with the people involved, or concerns for his own position. Moreover, the independence of outside counsel or investigators from institutional stakeholders will afford the investigation greater credibility with critical outside constituencies, especially law enforcement and government regulators, who will consider the nature of the institution’s response to the problem in considering how they will address it.
There will be resistance at first to this “investigate everything” approach. Close-knit groups like sports teams and academic departments will not automatically welcome outside lawyers or investigators entering their spheres and asking the hard questions that need to be asked, or reading the sensitive emails that need to be read.
Critical to overcoming this resistance is reinforced open communication to build trust that the administration is not establishing an “Internal Affairs” squad that will be evaluated based upon the problems it finds and the punishment meted out. Both the investigative team and the institutional community must be sensitized that the goal is as much to confirm that “there is no problem” as it is to uncover a problem in its infancy, before it has a chance to metastasize and swallow the organization whole.
Just as with cancer, early detection is the key to a cure. So, no matter how thin the evidence might seem, follow up on persistent rumors about hazing or other student or faculty misconduct; connect the dots between your star running back’s new car and the booster who has been spending too much time around the team; acknowledge your own failings and take the small, discreet hit today, rather than the inevitable public flogging amid a circus atmosphere on your way out the door next month.
Justice Brandeis once said that “sunshine is the best disinfectant,” a line repeated so many times as to become a cliché. Another, post-Watergate cliché is that “the cover-up is worse than the crime.” These maxims are repeated constantly by pundits, as yet another icon falls. It is time to digest their lesson.
Scott Coffina, former associate counsel to President George W. Bush, is a lawyer at Drinker Biddle & Reath.
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