There’s Only One Way to Eliminate Bias and Conflicts of Interest in Investigations – Expert
WASHINGTON, D.C. (July 9, 2018) – The prestigious Chronicle of Higher Education, other publications, and recent testimony under oath have raised serious questions about how independent and impartial so-called independent outside investigations of the date rape procedures at many universities really are, citing examples of alleged abuses by one of the leading firms hired to produce such reports.
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This should come as no surprise, says public interest law professor John Banzhaf, who has long maintained that there are inherent biases and conflicts of interest any time a college or university undertakes its own investigation of reports of date rapes and other sexual assaults on its own campus, and the same appears to be true even even when they try to hide behind so-called outside investigators, he says.
However, there is one simple solution, proposed by Professor Banzhaf, which would eliminate these otherwise inevitable conflicts of interests. Fortunately, the head of the Department of Education has praised the system proposed by Banzhaf, and is likely to include it in any new rules or other guidance designed to deal with campus sexual violence.
As the Chronicle noted, “Yet some critics allege that the [outside] lawyers, paid by the college in question, have incentives to serve institutional interests, not to unearth and expose any failings. The critics also question the dual roles such firms can play, investigating a college at one point and later defending that same college in court.”
It cites testimony under oath that Ian McCaw, who was Baylor’s athletic director for more than 13 years, asked the outside firm hired to investigate Baylor University, “what final work product they would provide to the university.” The firm’s representative reportedly said “it would be up to the regents. They may want a detailed document. They may want a summary report, or they may ask us to whitewash the whole thing.”
McCaw’s affidavit then says that Baylor decided on a strategy of releasing findings of fact which were “false” and “misleading” “skewed to make the football program look bad to cover up the campus wide failings.” It was, he said, part of “an elaborate plan that essentially scapegoated black football players and the football program for being responsible for what was a decades-long, university wide sexual-assault scandal.”
According to Wendy Murphy, a lawyer who teaches sexual-violence law and helps students file sexual-assault and sexual-discrimination complaints, outside law firms are hired primarily to protect the institutions which employ them. She claims “universities are not going to pay these law firms to actually be impartial, . . . they’re doing it to create the appearance of impartiality.”
It is well known and generally accepted that, in both criminal and civil cases, the defense can almost always find and hire an expert to say whatever it wants said, and both prosecutors and plaintiffs can almost always find an expert who will contradict the first expert and say what they want said.
It would seem to be the same for universities hiring outside law firms to investigate themselves; they can almost always find one who will produce a report which sounds impartial and credible but reaches whatever conclusions the university desires, suggests Banzhaf.
Another concern about hiring an outside law firm to conduct a so-called impartial investigation is that its true findings may never be revealed, not only to the general public, but also even to the faculty at the university being investigated. One tactic, says Banzhaf, is to present only an oral report, so there’s no written record which can be subpoenaed. Another is to claim attorney privilege, he says.
Donna A. Lopiano, formerly director of women’s athletics at the University of Texas at Austin, agrees. “That’s how they market themselves: If you hire me, I’m an attorney, I can speak to your attorney, we’re protected by attorney privilege, and whatever I find is not discoverable,” Lopiano said.
Banzhaf’s proposal for ending the inherent bias and conflict of interest which occurs whenever a university investigates its own practices, either by itself or by hiring an outside firm, is for allegations of campus sexual assaults to be handled, not by the college itself, but by independent regional centers set up to do nothing but that.
Banzhaf’s idea for regional centers to impartially investigate sexual-assault allegations, which he likens to many other multi-university consortia in major cities, has been featured in the Chronicle of Higher Education, U.S. News, Washington Examiner, National Public Radio, CNN, New York Times, Inside Higher Ed, and in other respected media outlets.
It was also singled out for praise by U.S. Secretary of Education Betsy Devos. Here’s how CNN reported on her speech outlining new approaches to Title IX investigations.
“As for practical change, for now DeVos is seeking public feedback on how to improve the system. One model she has mentioned – referring Title IX sexual assault complaints to ‘regional centers’ that would coordinate their work with law enforcement – is a promising idea. (DeVos credited it to former prosecutors Gina Smith and Leslie Gomez; a similar proposal has been made by George Washington University law professor and civil rights advocate John Banzhaf.)”
Ordinary criminals and major institutions charged with serious wrongdoings are not allowed, for very obvious reasons, to pick and choose any attorney or law firm to investigate and determine their guilt or innocence, notes Banzhaf, so we should likewise given little credence to reports by firms-for-hire reporting on colleges’ alleged violations of Title IX or other laws.
When a university receives a date-rape complaint, it has a strong incentive to bury it so as not to adversely affect its reputation, and its continued ability to attract female students, and this is even stronger if the accused is a star athlete or the son of a well connected and/or major donor.
On the other hand, colleges have an equally strong incentive to impose punishments on the accused to avoid Title IX complaints by activist female students, and the resulting intrusive and damaging investigations by the government. So, however they rule on a date-rape complaint, one side will have well justified suspicions of bias which can never be truly dispelled.
The same is obviously true when a university hand picks which outside law firm is going to investigate it, and sometimes even later represent and defend it, especially when its final report, and the underlying facts which were found, will never be made public, he says.
The only solution is to get universities out of the investigation and adjudication business regarding felonies for which they are poorly equipped and too easily pressured, and turn all such matters over to an impartial regional center.
That will insure fairness to both accusers and accused, and eliminate any need for so-called “impartial” investigations by hand picked law firms, he maintains.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf
