Sunday, April 22, 2018

Can Universities Ever Do The Right Thing?

Editors' note:  In this post Prof. Dunlap reflects on essential conflicts of interest faced by universities when risk management is a factor in determining how to proceed with Title IX complaints.

by Justine Dunlap

 Image1The March 26 arrest of William Strampel, the former dean of Michigan State University’s College of Osteopathic Medicine, served as a vivid reminder of the poor decision-making that occurred at MSU regarding serial abuser Larry Nassar. It turns out that as early as 2004—two years into Strampel’s tenure as Dean and 10 years before he was put in charge of ensuring that protocol regarding Nassar’s contact with gymnasts was followed—a memo voicing concern about Strampel’s behavior was sent to Lou Anna K. Simon. Simon was then the MSU Provost and went on to become MSU president; she stepped down on January 24, 2018, the same day as Nassar’s sentencing.

Hindsight is, of course, 20-20. Further, the Me Too Movement has heightened awareness of the ubiquity of sexual harassment. And it is likely not possible to know what action, if any, Simon took against Strampel. What we do know, however, is that it was wildly inappropriate to have Strampel providing oversight for Nassar.

So it is worthwhile to examine subsequent efforts by MSU undertaken after its 2014 Title IX investigation resulted in Nassar being permitted to seeing patients again. One such effort was the university’s hiring of famed former prosecutor Patrick Fitzgerald—apparently at $990 hour—to, in Fitzgerald’s words, “assist MSU in responding to allegations of misconduct concerning” Nassar. These allegations re-emerged after a 2016 investigative series from the Indianapolis Star newspaper.

Surely, the university ought not be criticized for doing risk management--although the choice of a law firm that billed the public university close to $4.1 million is open to question. Of more concern is the misimpression in the minds of many that Fitzgerald was doing a thorough review of what went wrong. It is now clear that was not what Fitzgerald was retained to do. His work did not even result in a written report, Fitzgerald told Michigan Attorney General Bill Schuette in response to Schuette’s request for the production of any report.

Now that the Attorney General has appointed William Forsyth as a special prosecutor to investigate MSU’s mishandling of the case, there is hope for an independent investigation. And indeed it is Mr. Forsyth’s investigation that has led to the criminal charges filed against former Dean Strampel in March. Who knows what will follow? Can we hope that part of Forsyth’s investigation will serve as a template on the mistakes a university should avoid. Or is it too much to hope that an institution focused on liability can ever do the right thing?

https://lawprofessors.typepad.com/human_rights/2018/04/title-ix-can-universities-ever-do-the-right-thing.html

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