Thursday, January 5, 2017

Five Rules for Managing Organizational Misconduct

Over the last few years, as I have traveled the country helping colleges and universities improve their ability to investigate and adjudicate hazing, I have noticed a disturbing phenomenon; most college campuses are incredibly ill-prepared to address misconduct involving student organizations and varsity athletic teams.

Take a look at the NASPA Fraternity/Sorority Knowledge Community page, or the ATIXA listserv, or the ASCA Facebook group and you’ll notice the same glaring trend – LOTS of questions about how to handle organizational investigations and adjudication. As I work with campuses on these issues, I see a lot of common mistakes, many of which I now address in my training. In this post, I want to address some of those mistakes and offer “Doctor Gentry’s Five Rules for Managing Organizational Conduct.”

Rule #1 – Have an Organizational Conduct Policy that Is Separate from Your General Student Code of Conduct

This is the first rule, because it is the most common mistake that campuses make. Many campuses treat student organizations no differently than they treat individual students. In doing so, they only have one policy (a student code of conduct) laying out prohibited behaviors, procedures, and student rights. As many campuses eventually discover, this “one size fits all” approach rarely works cleanly with student organizations.

Campuses would be wise to adopt a separate set of policies related to managing organizational conduct. These should include a specific set of processes related to organizational investigation/adjudication procedures, a clarification of roles/responsibilities in the process (more on that later), and options for formal or informal adjudication (also more later). In addition, some prohibited behaviors also warrant their own separate policies. Almost all campuses now have Title IX/Sexual Misconduct Policies that lay out prohibited behaviors and procedure related to sexual harassment and gender discrimination on campus. But what about a hazing policy? Most campuses only mention hazing in the list of prohibited behaviors and never get into the details of how hazing will be investigated/adjudicated. Campuses would be wise to adopt a stand-alone hazing policy laying out these procedures. At NCHERM we have adopted a model hazing policy that we provide as a resource to the campuses with whom we work.

What should these separate policies include? Generally speaking, as an institution, you need to “give yourself permission” to use specific investigative tactics. For example, if you are conducting an investigation into hazing and you want to lock all of the pledges in a room and keep them there, restricting their communication until all have been interviewed, can you do that? Does your policy allow for that? Or if you want to require students to undergo a medical examination to examine them for signs of hazing (bruising, burns, etc.), does your policy allow you to do that? My guess is than 95 percent of current student codes of conduct do not address these issues, which could leave campuses in a legal quagmire if they attempt to implement these practices during an investigation. Campuses would be wise to write these polices in a manner that gives them wide latitude in conducting organizational investigations.  

This is why a separate organizational policy is important – there are some basic due process rights that are consistent (because they have come largely from the courts since Dixon vs. Alabama) across institutions when it comes to individual students and the conduct process. But the courts have been largely silent on issues of organizational rights in campus disciplinary proceedings. Generally speaking, a campus can create any system it wants to adjudicate these cases, so long as the process is not arbitrary or capricious. When campuses use individual rights to frame organizational due process rights, they are only making the organizational investigation/adjudication process more difficult than it needs to be. Campuses can do, in essence, anything they want with student organizations, so long as they are following their own policies. So a good organizational process begins with having good organizational processes that are spelled out in a separate organizational policy.

Rule #2 – In Your Policies, Clearly Delineate Roles and Responsibilities

When an organization on your campus is accused or suspected of wrongdoing, who investigates? Who adjudicates? Who hears appeals? Do these responsibilities lie with a single individual? A single office? Or are these responsibilities shared across campus based on the nature of the violation or the accused organization? Can the student conduct office “sanction” a varsity athletics team, or are those responsibilities vested solely within the athletics department? Who has the authority to issue interim sanctions or cease and desist orders, and can those be appealed? If so, to whom?

These are questions that often come up when I’m training campuses on organizational conduct. And they are all good questions. I could give you a list of “best practices” to answer those questions, but I’m not going to. Besides, what makes a practice “best” and who makes that decision? The short answer is this – every campus needs to address these and other important questions in the manner that makes the most sense on that campus.

As you come up with those answers, here are some guiding philosophies that I would suggest you apply:

  • The key to any investigation is that it is fair, impartial and unbiased. Thus, those closest to the team/organization should not be the ones investigating. The campus fraternity/sorority advisor should not be investigating alleged misconduct of campus fraternities for the same reason that the soccer coach should not be investigating alleged misconduct of the soccer team. Those working with these groups on a day-to-day basis are incapable of impartiality (I’ve written more about this topic here).
  • Investigations involving varsity athletics teams should involve investigators from both inside and outside the athletics department. Someone inside the department is critical in these investigations, as they will understand team culture and traditions better than others. But it is also important that these investigations not be seen as insular. Imagine if an allegation is received, and the athletics department conducts a thorough investigation of a team and is unable to substantiate anything. Then, the following year, a student on that same team is injured in a hazing incident. Regardless of how thoroughly the prior investigation was conducted, the appearance, from both a legal and PR perspective, will be that the athletics department knew there was a problem and did nothing about it, and only used inside people to conduct the investigation. Having an athletics representative as part of the investigative team also makes the sanctioning process much easier.
  • Only senior staff should be able to issue interim sanctions/cease and desist notices for organizations, and these should be used sparingly (more on that later). In assigning these roles, it is important to build a firewall between the adjudication process and the appeals process. For example, if the VPSA is the appeals officer, he or she should not be the one to offer interim sanctions. That responsibility should be designated to a Dean of Students or equivalent position.  Fraternity/sorority advisors or other campus organization advisors should not be responsible for issuing cease and desist notices, as this can jeopardize their ability to work with accused groups in the future. 

Rule #3 – Self-Governance Should Be the Goal of Organizational Conduct Processes

The entire organizational process should be centered around one goal – to promote and encourage organizations to self-police and self-govern. This theme should be woven into the investigation process, the adjudication process and, most importantly, the sanctioning process. Here are a few ideas that encourage self-governance:

  • Self-Reporting Policies – our model hazing policy at NCHERM has a clause for self-reporting. The idea behind this clause is that you give organizations an incentive for reporting individual misconduct violations (particularly helpful in hazing, Title IX, and other serious crimes – less helpful with alcohol and other minor violations). The clause basically says this – if an individual in your organization violates a policy, and you address it and report it, we will work with you to address JUST that individual and will not sanction the entire organization. To borrow the “carrot and stick” analogy, self-reporting provides a great carrot aimed at getting organizational leaders to draw clear lines of acceptable and unacceptable behavior in their organizations.
  • A Partnership Process – Out of all of the campuses I have worked with, LSU probably does the best job of giving student organizations an incentive to self-investigate, and on the back end does a great job working with organizations on “outcomes” as opposed to “sanctions.” You can read more about their process here.
  • Students Play a Role – Auburn University has done an excellent job integrating students in at every level of the organizational adjudicative process. All investigations (with the exception of Title IX) are conducted by a trained student/administrator team, and students are involved in the adjudicative and appeals processes as well. By creating transparency and involving students in the process, student organizations are much more likely to buy in to self-regulation and have a more favorable attitude towards the investigative/adjudicative process.
  • Create Incentives for Self-Governance Through Outcomes – When you develop educational sanctions (or as I like to call them, outcomes), you should do so with the goal of creating opportunities for students to self-govern in the future. Here are some examples of process outcomes designed to promote self-governance:
    • Working with the group to overhaul its internal conduct/standards process and ensure that members and advisors receive regular training related to member accountability
    • Working with the group to develop clear and articulated membership standards and behavioral policies
    • Having social restrictions tied to demonstrations of self-governance (i.e. if a chapter hits certain benchmarks related to self-governance, some of its social activities can be restored) and providing incentives for future self-reporting/self-governing

Rule #4 - Campuses Should Invest in Training Investigators

Campuses need to invest more in having a team of trained investigators for organizational conduct cases, particularly those involving victims (hazing, sexual or physical violence, etc.). By allowing novice investigators with no formal training investigate these cases, we do a tremendous disservice to victims. Hazing cases, in particular, offer the biggest challenge for new investigators. Think about this – in a Title IX case, the hardest thing an investigator will ever have to do is make a credibility determination. Based on evidence gathered from third parties, whose version of events do I find more credible. This is difficult to do, but not impossible. Hazing cases, on the other hand, involve a concerted effort, even by the victims themselves, to provide misinformation to the investigators. A large percentage of hazing cases end with administrators being unable to substantiate the claims of the case. Investigators need to receive training on how to handle these cases. In a separate blog post, I’ve offered some advice on how to conduct these investigations in a manner more likely to result in a finding of the truth. Campuses who fail to invest in training their investigators will yield the inevitable fruits of that decision – dead end investigations and continued misconduct.

Rule #5 – Cease and Desist Orders Are Last, Not First, Option

I have worked with several campuses in the last few years whose automatic default, any time they receive an allegation of potential misconduct, is to place the organization on a cease and desist (the organizational equivalent of interim suspension). I think cease and desist orders should be used sparingly in order to have the most impact and to avoid creating unnecessary animosity between the students and the administration. Issuing cease and desist notices are appropriate when failing to do so could place students in harm’s way. In any sort of serious hazing case, or in cases of serious physical abuse or sexual misconduct that is clearly organizational in nature (like the Kappa Delta Rho case at Penn State last year), a cease and desist is the appropriate response. But many campuses have now taken the step of issuing a cease and desist for almost all cases, regardless of severity. A campus recently called me about a Title IX case they were investigating, in which an alleged sexual assault may have risen out of a fraternity party. The case was completely individual in nature, and nothing indicated that the chapter knew about, condoned, or was in any position to stop the alleged assault. The investigation had revealed that there were some other issues related to the party (namely distribution of alcohol) that may eventually lead to charges against the chapter, and the campus administrators asked if a cease and desist was appropriate. I responded, as I always do to this question, with a question of my own – “If this were just a standard run of the mill alcohol case, not involving a Title IX investigation, would you offer a cease and desist?”  The answer to that question being “no,” I proceeded to my next question. “Then why would the fact that this information came from a Title IX investigation and not some other type of report cause you to order a cease and desist?”

If an organization’s continued operation poses a threat to student safety, then a cease and desist is appropriate. Short of that, it is not appropriate and should not be used. Just because a fraternity or sports team is indirectly involved in a potential Title IX violation does not mean that the organization poses a threat to other students. Would we temporarily kick all of the students out of a residence hall if a sexual assault occurred after a floor meeting? Would be suspend the entire chess club if a student was sexually assaulted by a member of the team after a match? Did anyone propose suspending the entire Oklahoma football team after Joe Mixon punched a woman in the face at an off-campus restaurant? I ask these rhetorical questions to illustrate a point – holding entire organizations responsible for individual acts of misconduct is rarely, if ever, appropriate. When cease and desist orders are used as a punitive measure, and not because of a genuine concern for student safety, then they become problematic. They should be used sparingly, and only for the purpose of promoting student safety.

Organizational misconduct can be difficult, but if you follow these simple rules, these cases will be much easier to manage, you will be more likely to impact the negative behavior you are trying to address, and you will build trust instead of animosity as you navigate the organizational conduct process.