For several decades following the tumultuous 1960s, college campuses seemed relatively serene, and did not often appear in the headlines. In this decade, however, and in sharp contrast to the past, it seems a rare day passes when a report of a crisis or potential crisis at a university does not make the news. Social media (there are no more secrets) and active constituencies (smarter students and the new generation of helicopter parents) in part may be responsible for this evolution, but regardless of the cause, university administrators must be prepared for this attention and these events.
The range of issues faced by university administrators is broad and sometimes resemble a complicated hypothetical question from a college exam. By way of example only, Varsity Blues, extra-marital affairs, controversial speakers, sexual harassment between students or faculty and students, bribes in athletics, calls for greater diversity in admissions, shooters on campus, and demands for refunds due to COVID-induced remote learning all raise concerns of liability and reputational harm that could permanently affect the economic future of a university.
To confront, address, mitigate and proactively avoid situations that can quickly reach a crisis level, preparation and planning are critical to controlling, rather than exacerbating, an incident. Even the most brilliant college administrators should put together the right team so that the unique laws involved in the educational setting are not inadvertently overlooked. Depending on the crisis, the team might look different, but most often involving your legal and communications experts early is a good place to start.
Each issue brings forth its own unique set of legal and communications issues that oftentimes intersect. For example, the Family Educational Rights and Privacy Act (FERPA), a federal law that governs students’ privacy rights and determines access to students’ educational records, can be implicated by a carelessly worded statement, leading to devastating penalties like the withdrawal of federal funds and other monetary fines. Likewise, Title IX, which prohibits discrimination in the educational setting, has specific rules and processes that must be considered in decision-making and communications. The consequences for violating Title IX vary (depending on who violated: a professor, a student, or the institution) but can range from loss of funding to liability for damages, to student expulsion, to termination of employment. Additionally, the COVID-19 pandemic has brought workplace safety laws to the forefront as administrators consider, their duty to provide a safe workspace for faculty and staff. These are just a handful of the issues that may surface at a university, but it underscores the importance of being prepared.
While the appropriate solution for every situation varies and is fact-dependent, there are some common steps that administrators should consider taking, hopefully before a crisis arises, but certainly as they manage their way through one:
- Be prepared: Establish a crisis response team in advance, composed of experts in relevant fields. Not every situation calls for every expert, but having a team in place with established resources is critical. Two important components of this team are PR experts and a legal team. This team should meet occasionally and run practice drills and responses to stay sharp and flesh out issues in advance of a crisis. Having this team in place will put the university administration in a better position to get out ahead of a problem before it escalates.
- Stay attuned: Monitoring social media, student affinity groups, and faculty and employee forums all will help administrators anticipate what may become the next problem. Having a team assigned to stay on top of what is happening on campus, rather than a haphazard reactionary approach, will be more successful. And, as a side benefit, having administrators who are visible and show an interest in the university (and local) community may help avoid misunderstandings that can lead to discontent and controversy.
- Communicate effectively and with accuracy: While transparency is often the most successful strategy, sometimes “no comment” is more appropriate. Seek the help of the PR and legal teams before communicating to avoid inflaming a situation, violating privacy laws and waiving important privileges. The best-intentioned communications, if inaccurate or improper, can permanently damage a university’s credibility and reputation.
- Train your faculty and staff: The unique laws that apply in the university setting can be tricky and are often unknown to faculty and employees. It is critical to conduct meaningful training, not only to satisfy legal annual training requirements, but to ensure that faculty and staff are mindful of important issues and their legal responsibilities. Topics such as ethics, privacy, diversity and discrimination and individual responsibility and liability are good starting points.
- Set up a hotline: Establishing an avenue for anonymous reporting is an important tool in bringing problems to the forefront early on, and it can also serve as a pressure valve for frustration. All constituencies should be encouraged to report, in good faith, bad behavior or other problematic issues. Once identified, a proper investigation should be prompt. The scope may vary with the issue; sometimes an internal investigation can suffice, but in some instances, an independent third party must be brought in to investigate.
- Set the right tone and do the right thing: The culture of a university starts at the top. Administrators should not underestimate the importance of the example they set not only by their communications, but by their actions.
Ignorance of or a failure to fully understand the unique rules governing universities can quickly transform a snowball into an avalanche. Having the right crisis response team adequately prepared and on speed dial will best position university administrators to address, manage and hopefully mitigate the fallout from a crisis – or better yet, avoid them.
Wendy M. Lazerson is the co-chair of Sidley Austin LLP’s Labor and Employment international practice group and a partner in the firm’s San Francisco and Palo Alto offices. She can be reached at [email protected].
