Homework for college and university counsel

With ongoing criminal investigations, potential litigation and more oversight from the government and other monitoring organizations, it's a good time for all schools to pressure test various admissions-related areas.
By: and | September 17, 2019
Photo by Snowing

David H. Harper is a litigation partner at Haynes and Boone, LLP. Nicole Somerville is a Counsel in Haynes and Boone’s Internal Investigations and Crisis Management Practice Group.

With the seeming explosion of new federal investigations and litigation related to college admissions, college and university in-house counsel have had plenty of homework.

Varsity Blues shows that admission to college is still a prize and the money in college sports may have a wide corrupting influence. (And this does not even begin to touch all the issues raised by money from apparel deals and future professional status for athletes we see in the on-going basketball criminal investigations and charges.)

Now, the money does not come from shoe companies or agents, but from parents who want to secure a special spot for their child.

Your school’s administrators may think: “We are not Stanford or Yale, this is not a problem here.” But, the truth is admission is hard at almost every school for someone. Colleges are constantly trying to raise their selectivity. And, beyond admission to the university in general, there are special programs like honors colleges or a selective business or arts program, that carry the same temptations.

With ongoing criminal investigations, potential litigation and more oversight from the government and other monitoring organizations, it’s a good time for all schools to pressure test various admissions-related areas. This is a process that should involve both counsel and your school’s compliance team (not just athletics, but institutional compliance.)

Identify admission influencers

First, university counsel should identify all the areas where admissions decisions and influence exist. This starts with the admissions office itself but extends to deans, athletics and development, among other places. If an individual has significant subjective decision-making authority or just significant influence over an admission decision, that person, sadly, may be susceptible to improper outside influences. A review of all these entry points is the first step to identify potential weaknesses.

Identify special program admissions

Second, admissions to special programs also need to be reviewed. Discretion to admit students to more selective programs is fertile ground for potential misconduct. That prestigious design program, business program or honor college has some form of the admissions process. Although the top half of such a cohort might be unassailable, discretion in decisions about the rest of the cohort presents the same problems as any other admission decision.

Compliance systems

All these areas first need appropriate oversight and systems to prevent bad behavior. Obviously, schools must trust their personnel, but systems and policies are important to protect the institution from misconduct. There should be some system in place for some layer of review of decisions in admissions and in selective programs. That could be a committee, a supervisor, a deep dive check of random samples of decisions, or automated systemic reviews.

Institutional compliance officers, not just those in athletics, with in-house counsel should be involved in developing these policies and systems. Government investigators typically want to see multiple aspects of a compliance program: (i) policies and procedures, (ii) organizational oversight of compliance at the highest levels, (iii) communication and training efforts, (iv) an active audit function to follow up on compliance mandates, (v) anonymous reporting mechanisms, (vi) internal enforcement and penalties for violations, (vii) corrective measures undertaken when violations occur, and (viii) periodic assessment of the risks.

Policies against misconduct

Next, every school should have a policy that expressly forbids making such decisions for personal reasons and forbidding taking personal monies or other things of value to grant any form of school benefit, whether it is admission, a spot in a program or a scholarship. This is important to discourage bad behavior, but also has important legal significance to avoid liability related to a wide variety of claims.

These policies should be communicated through a variety of means, including in annual employee training, on the university’s website, and with an e-mail announcement to school personnel and students in light of the on-going Varsity Blues investigation. You should also consider a message to all alumni and other constituent groups about the results of your work and your policies at an appropriate time.

Electronic searches

Another way to pressure test admissions is to run e-mail and other electronic searches on your systems. Consider running the names of the key players in the Varsity Blues scandal through your systems. Has anyone been in contact with them? If so, you had better dig deeper. Did any of the known students in Varsity Blues apply for admission to your school? You may want to look at their contact with your school to see if there are any weak spots.

Student policies

In examining students, you should also review your own disciplinary policies and procedures for fraud in the admissions process. Of course, you need a policy against that, but what process will you follow if you have a student who is suspected? It may be your standard student disciplinary process, and that may be fine, but you should consider if the path is set out and that you would be satisfied with it.

Privileged?

Finally, counsel should consider enveloping this process in confidentiality through the attorney-client privilege and the work-product doctrine. Given the on-going investigations, protective investigative measures like this may be able to be covered in a privilege. Depending on the situation at your school, you may want much of this process to be overseen by the office of general counsel so that at least some of the process may remain confidential.

There is no way to prevent every form of misconduct people can dream up, but with the revelation that parents and students will cheat where there is any available gap, university counsel needs to take a hard look at their own school to prevent bad behavior and getting entangled in the next inevitable round of investigations.

David H. Harper is a litigation partner at Haynes and Boone, LLP in Dallas, Texas and served as the chair of the special committee at Baylor University that oversaw the school’s outside investigation into Title IX issues. Nicole Somerville is a Counsel in Haynes and Boone’s Internal Investigations and Crisis Management Practice Group in Dallas.