By Stephanie Gallagher, JD
stephanie.gallagher@corporatecompliance.org
Speakers:
Johnny Sutton, Partner
The Ashcroft Group
Kenneth Wainstein, Partner
Cadwalader, Wickersham & Taft, LLP
Kicking off Tuesday at the Higher Education Compliance Conference was a fantastic session highlighting the investigation of academic integrity issues with two impressive speakers. Johnny Sutton, of the Ashcroft Group, has more than 20 years government experience as a front-line trial prosecutor and is a top policy advisor to a Governor and President. He is currently focusing his practice on internal investigations, white-collar criminal defense and helping companies comply with federal law.
Kenneth Wainstein is a Partner at Cadwalader, Wickersham & Taft, LLP and is Chair of the firm’s White Collar Defense and Investigations Group. Mr. Wainstein spent 19 years at the Justice Department and was named Homeland Security Advisor by President George W. Bush. He is also well known for his independent investigation into the academic irregularities at the University of North Carolina at Chapel Hill.
Given the caliber of the speakers, I knew I was in for a great session. Wainstein and Sutton are old friends, and have a flair for making this important subject engaging and entertaining. If you take a look at the session handouts, you’ll see what I mean.
We started the session with a discussion of some recent high profile academic integrity issues, including the Duke Lacrosse, University of Virginia/Rolling Stone, and University of North Carolina controversies. This set the stage for a very important component of dealing with these issues in higher education, which is the need for an independent investigation.
Historically, investigations were conducted internally by university counsel, internal adjudication proceedings, referrals to HCAA enforcement, and referrals to criminal or regulatory authorities. However, with the rapid development of technology and social media, it is especially important to tackle these issues in a way that leaves no appearance of mishandling the situation, given that nowadays news has the potential to go viral. This is where the independent investigation comes in.
As part of our discussion, we examined the objectives that should guide a school’s response to allegations of misconduct, which include:
- Ascertain if there was misconduct or negligence.
- Assign accountability for misconduct or negligence and take any appropriate personnel actions. Be sure that the steps that are taken are the necessary steps to uncover the facts, and be sure to avoid the appearance of self-preservation.
- Diagnose any failings in policy or procedures and take steps to remedy those failings. Training is a very important component of this objective. Be sure your organization is up to date on the policy manual. If it’s been awhile since you’ve reviewed or updated your policies, dust off the manual and be sure that you’re aware of, and following, all policies included. Edit those that are no longer relevant.
- Demonstrate good faith effort to find the truth and dispel any suggestion of cover-up or wagon-circling. Be forward thinking and make sure that you’ve taken every step that will be construed as doing the main objective of a commitment to students.
- Demonstrate commitment to transparency.
- Demonstrate school’s commitment to its students and academic mission.
- Position the school to move beyond the controversy. Don’t leave open questions that critics can latch on to. Try to expedite the process and not leave any lingering questions.
Independent investigations can be a very effective way to achieve these objectives. A well-run independent investigation can:
- Perform fact finding which will allow the school to determine whether there was misconduct and assign accountability.
- Determine the school’s commitment to the truth and transparency through its decision to authorize a credible outside party to conduct the investigation.
- Demonstrate the organization’s commitment to its students and academic mission.
- Expedite the school’s ability to move beyond the controversy by producing a report that is the final word on the allegations.
The full presentation is available here, and outlines in more detail the background of some of the recent higher education controversies and the process for establishing an independent investigation. It makes a great reference for evaluating your own process for investigating academic integrity issues.