United States: The Unique Aspects Of Independent Investigations In Higher Education

Last Updated: November 2 2016
Article by Kenneth L. Wainstein and A. Joseph Jay, III

Most Read Contributor in United States, August 2018

Although independent investigations in the higher education context are functionally similar to those in the corporate context, there are distinctive aspects of investigative work on college campuses. This Article highlights such differences by explaining how the independent investigator should confront conditions and challenges in the higher education context, which differ from the challenges in the corporate environment. The authors of this Article exemplify such differences through their independent investigation into academic irregularities at the University of North Carolina at Chapel Hill.

I. Subject Matter of Higher Education Investigations

Unlike corporate investigations, which typically involve conduct that potentially violates laws or regulations, higher education investigations may involve a wider range of conduct, some of which may have little to do with violations of federal or state law. In higher education, conduct subject to review ranges from academic fraud to sexual misconduct, and from undue influence in admissions to athletic recruiting violations.

University athletics has become a focal point for public scrutiny and is increasingly the subject of higher education investigations.1 During our investigation at the University of North Carolina at Chapel Hill (UNC),2 a central question was to what degree, if any, the athletic department was involved in academic irregularities on the campus. Likewise, in the Pennsylvania State University (Penn State) investigation, the primary issue was whether Penn State covered up allegations of child sexual assault against Jerry Sandusky to protect the university's athletic program.3

Sexual assaults on campus and the administration's handling of such allegations have become an area of intense national focus and an impetus for independent investigations.4 In November 2014, for example, the University of Virginia found itself the subject of a Rolling Stone article that claimed the university gravely mishandled allegations of a gang rape at a fraternity house.5 In response to the Rolling Stone article, which was later debunked and retracted for flawed reporting,6 the Virginia Attorney General's Office engaged O'Melveny & Myers LLP to conduct an independent review of the university's sexual assault policies and procedures.7

Other areas ripe for independent investigation in the higher education context include allegations of undue influence in the admissions process, like at the University of Texas at Austin,8 and offensive student conduct and the university's response to such conduct as investigated at the University of Oklahoma.9 Additionally, excessive spending by a university president was previously subject to internal investigation at American University.10

II. Constituencies in Higher Education Investigations

In a traditional corporate internal investigation, an independent investigator typically reports to the general counsel, or when senior management may be implicated, to the company's board of directors or a committee thereof, such as the audit committee or a special litigation committee. The investigator answers primarily only to one of those parties, and knowledge about the progress and findings of the investigation is typically kept within a small circle of management or board members.

Universities, by their very nature, have many more constituencies that may be involved in—or may seek to involve themselves in—an independent investigation. First, although an independent investigator might be appointed by the school president or chancellor, there is likely a governing board behind that official that feels entitled to have some say in the investigation.11 The investigator must work to earn confidence among that board's members to ensure the investigation receives appropriate support.

Another influential constituency is the faculty of the school under investigation. Given their primary role in the academic mission, college faculty members arguably have greater say over campus matters than the typical corporate employee has over company matters. Faculty groups will not hesitate to weigh in on all questions regarding the investigation, from the decision to initiate an investigation, to definition of its scope and to the legitimacy of its ultimate findings. The independent investigator on campus needs to engage constructively with those faculty groups, and failure to do so could invite faculty criticism, which may undermine the perceived legitimacy of the investigation and its ultimate findings.

A third influential constituency is the school alumni. Although they may not have direct input into the running of an investigation, alumni typically exercise significant influence over a school's leadership and operations and therefore will play an important role in shaping the perception of the independent investigation.

In the case of public schools, there remains one more crucial constituency—the state government. The influence of the state government was exemplified in the investigation at the University of Virginia where the Virginia Attorney General overruled the University's selection of independent investigator and installed his own choice.12

III. Witnesses in Higher Education Investigations

Large corporations are typically more experienced with regulatory crises than universities. In the years since the Enron13 and Worldcom scandals14 and the passage of the Sarbanes-Oxley Act of 2002,15 corporate America has grown accustomed to investigations, which are increasingly recognized as a standard part of business.

Until more recently, colleges and universities had not been subject to such probing investigations. As a symptom of their unfamiliarity and unease with independent investigations, witnesses in a campus investigation tend to demand more explanation and comfort from the independent investigator than those in a typical corporate investigation.

As young adults, most college students have never encountered an investigation and have never been asked questions in a formal environment. Many college students are scared their answers could harm themselves or others, and concerned about the confidentiality of their participation in the investigation.16 Faculty members are often equally unaccustomed to being questioned, and they may feel that their academic freedom is threatened when a university-sponsored investigation starts asking probing questions.

The independent investigator must be sensitive to these concerns from students and faculty members. In our experience, both groups are generally receptive to being interviewed once we carefully explain to them the process and purpose of our investigation and answer their questions.17

IV. Privacy Rights in Higher Education Investigations

Outside counsel must recognize the important differences between the employee-corporation and student-university relationships. While the employee-corporation relationship is governed by state and federal employment laws that provide few privacy rights for employees, the relationship between the university and its students is governed by far more restrictive laws and regulations, including, among others, the federal Family Education Rights and Privacy Act (FERPA).18

The independent investigator must understand how FERPA defines the privacy rights afforded to students, and how these privacy rights affect the conduct of investigations. Because FERPA broadly shields personally- identifiable student information from being publicly disclosed outside the university, and to anyone within the university without a "need to know," the independent investigator must arrange for access to such information where necessary to complete the investigation.19

As an example, a critical component of our investigation at UNC was our review and analysis of student transcripts, class registration materials, and grade rosters. Before we accessed these records, we executed an agreement with the university stating that we would keep such information confidential, and that we would not re-disclose the information to anyone. We then had to carefully draft and review the final report to ensure it contained no FERPA-protected information.

V. Public Nature of Higher Education Investigations

Independent investigations involving a university inevitably attract significant public attention and coverage from both the media and the general public. Although it is imperative that the independent investigator does not publicly discuss her findings during the course of the investigation, it is in the interest of all parties—the public, the investigator and the university—that the investigator explain the investigative process that she is following so as to give assurance that the process is thorough, probing, and completely independent.20

For public universities, investigators should be aware of public records laws that may make documents and other records easily accessible to journalists and members of the public. In contrast to the typical corporate investigation, in which the corporation's documents and emails are largely accessible only to the investigator, investigators working at a public university have to consider the freedom of information laws, open meetings laws, and other sunshine laws that give the public and the press access to sensitive investigative information. For example, investigators must exercise caution in drafting preliminary reports, memoranda, and other records that may reflect preliminary findings during the course of their investigation, lest they end up in the public domain through the operation of public records laws.

VI. Reports in Higher Education Investigations

In the corporate context, it is fairly typical for the independent investigator to provide his or her findings to the company (i.e., management or the board of directors, or both) and possibly to a regulator, but not to the public. That makes sense, given there is typically little or no public awareness of the investigation—and even less public interest in its findings—and given the company's interest in preventing the findings from being used against it by competitors or potential litigants, or both.

With the intense public interest that can surround higher education investigations, it is often not an option to conclude the investigation without a public report. Though it may well be within a university's rights to withhold the investigative findings, it is practically impossible to do so in light of the intense pressure that would come from the press and the constituencies listed above.

For that reason, independent investigators should expect that their findings will result in a written, public report.21 Those reports may fuel criticism of the school in the short term, but the reports will ultimately serve the school's interests by providing tangible evidence of the seriousness with which the school took its obligation to the truth and to transparency. In writing such a report, the investigator must take extra care to ensure not only that the report is balanced and fair, but also that that balance and fairness comes through clearly in the report's factual recitation and analysis. Each report will be subject to intense scrutiny from groups with widely varying agendas, and only those reports that withstand such scrutiny will succeed in accomplishing their purpose— which is to provide the objective and authoritative final word on the underlying controversy and give the university the opportunity to address the misconduct allegations, move beyond the controversy, and look forward to the future.

Footnotes

1 See, e.g., Dr. David L. Graham, Academics and Athletics: The Necessary Tension in Higher Education, DIVERSE (June 7, 2012), http://diverseeducation.com/article/17125.

2 See Sarah Lyall, U.N.C. Investigation Reveals Athletes Took Fake Classes, N.Y. TIMES (Oct. 22, 2014), http://www.nytimes.com/2014/10/23/sports/university-of-northcarolina--investigation-reveals-shadow-curriculum-to-help-athletes.html?_r=0.

3 See Sally Jenkins, Penn State should own its role in the Sandusky scandal, WASH. POST (May 10, 2016), https://www.washingtonpost.com/sports/colleges/penn-state-should-own-its-role-in-the-sandusky-scandal/2016/05/10/41eea4ce-16b3-11e6-924d-838753295f9a_story.html.

4 Tyler Kingkade, 85 Colleges Are Now Under Federal Investigation For Sexual Assault Cases, THE HUFFINGTON POST (Oct. 15, 2014 3:21 PM), http://www.huffingtonpost.com/2014/10/15/colleges-federal-investigation-sexual-assault_n_5990286.html ("The most recent schools to fall under federal scrutiny include Grand Valley State University in Michigan and Marlboro College in Vermont, which had investigations started Oct. 6; Drake University in Iowa and Valparaiso University in Indiana, both opened Oct. 3; and the California Institute of the Arts and the University of Nebraska-Lincoln, for which inquiries began Sept. 30.").

5 Sheila Coronel et al., Rolling Stone and UVA: The Columbia University Graduate School of Journalism Report, ROLLING STONE (Apr. 5, 2015), http://www.rollingstone.com/culture/features/a-rape-on-campus-what-went-wrong-20150405.

6 Id.

7 See Elizabeth Parker & Mairead Crotty, Board hears report on University response to sexual assault allegations, THE CAVALIER DAILY (Apr. 1, 2015 1:21 AM), http://www.cavalierdaily.com/article/2015/04/bov-hears-report-from-law-firm-conducting-independent-review-on-the-university-response-to-sexual-as

8 University of Texas at Austin—Investigation of Admissions Practices and Allegations of Undue Influence, KROLL (Feb. 6, 2015), https://www.utsystem.edu/sites/utsfiles/news/assets/kroll-investigation-admissions-practices.pdf.

9 See Justin Wm. Moyer, University of Oklahoma fraternity closed after racist chant, WASH. POST (Mar. 9, 2015), https://www.washingtonpost.com/news/morningmix/wp/2015/03/09/university-of-oklahoma-fraternity-suspended-after-racist-chant ("A video of a racist chant by men alleged to be fraternity brothers at the University of Oklahoma . . . brought widespread condemnation and the fraternity's suspension. The 10-second video feature[d] men said to be members of the fraternity Sigma Alpha Epsilon (SAE).").

10 See Alan Finder, Senate Panel to Review American U. Board's Actions on Spending, N.Y. TIMES (Dec. 3, 2005), http://www.nytimes.com/2005/12/03/education/senate-panel-to-review-american-u-boards-actions-on-spending.html. American University, along with other universities, was also recently under investigation for sexual violence. See Nick Anderson, Feds Launch a Sexual Violence Investigation at American University, WASH. POST (Mar. 18, 2015), https://www.washingtonpost.com/ news/grade-point/wp/2015/03/18/feds-launch-a-sexual-violence-investigation-atamerican- university (noting other universities under investigation included San Francisco State University in California and Langston University in Oklahoma).

11 In the case of public universities, there may be two different boards—one for the local campus and one for the state university system.

12 See U.Va.'s Choice to Investigate Rape Response Scuttled, NBC WASH. (Nov. 21, 2014 6:52 PM), http://www.nbcwashington.com/news/local/UVas-Choice-to-Investigate-Rape-Response-Scuttled-283542741.html ("[Attorney General] Herring said another investigator [would] be chosen because 'the independence and objectivity of the review must be unimpeachable.'").

13 See Chris Seabury, Enron: The Fall of a Wall Street Darling, INVESTOPEDIA, http://www.investopedia.com/articles/stocks/09/enron-collapse.asp (last visited May 20, 2016) (describing Enron's accounting scandal).

14 See All About Worldcom, LAWS, http://finance.laws.com/enron-scandalsummary (last visited May 20, 2016) (describing Worldcom's accounting scandal).

15 Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745.

16 Because students are most often interviewed in connection with their status as a student, the Family Education Rights and Privacy Act generally prohibits a university from revealing, in any personally-identifiable way, whether a particular student participated in an interview or what the student said during an interview. See Family Education Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (2012).

17 For example, while we might use a standard Upjohn warning to explain to a witness the purpose and parameters in a typical corporate investigation—i.e., that we do not represent the witness personally but that we represent the organization, that the meeting is subject to the attorney-client privilege and that the privilege belongs to the organization and not the witness, and that organization could choose to waive the privilege and share the information from the interview without consulting with the witness—it is particularly important to provide a more robust explanation to faculty members and other university personnel.

18 Family Education Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (2012).

19 See id. The Health Insurance Portability and Accountability Act (HIPAA) and its protection of personally-identifiable health information may also subject an investigator to privacy issues. Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in sections 18, 26, 29, and 42 of U.S.C.). HIPAA applies in the university context to health records maintained by the university—either as part of a university medical center, student health center, counseling center, or elsewhere that health records are maintained. See id. HIPAA often comes into play in the sexual offense context.

20  See, e.g., Transcript of Kenneth Wainstein's Remarks at the Board of Governors meeting, THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Http://carolinacommitment.unc.edu/updates/transcript-of-kenneth-wainsteins-remarks-at-theboard-of-governors-meeting (last visited May 20, 2016).

21 See, e.g., Kenneth L. Wainstein et al., Investigation of Irregular Classes in the Department of African and Afro-American Studies at the University of North Carolina at Chapel Hill, CADWALADER (Oct. 16, 2014), http://3qh929iorux3fdpl532k03kg .wpengine.netdna-cdn.com/wp-content/uploads/2014/10/UNC-FINAL-REPORT.pdf.

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