Legal Standpoint: Existential Crisis

A Play With Three Acts

By Lee Tyner    //    Volume 31,  Number 6   //    November/December 2023

A university crisis—the existential sort that sends an institution scrambling to hire PR firms and lawyers, leads to leadership changes, and costs millions of dollars—typically unfolds like a three-act play.

In Act One, someone in one of a university’s many nooks, crannies, subcultures, or fiefdoms has picked up the metaphorical pen and is writing the opening scene. Act One is a bad story. Someone is abusing their power or taking advantage of students. A university leader has created a toxic but hidden subculture. A trusted manager is using university resources for personal gain. Or worse yet, a coach, health care professional, or faculty member is physically or emotionally abusing those entrusted to their care or instruction.

Sadly, first acts like these unfold every day in every sort of human institution. As long as people are people, some will make bad, even evil, choices. A university can never completely prevent Act One.

These early scenes in our drama do not tell us much about the institution’s values; they reveal the character of the antagonist. The institution itself is the setting of the drama, but is not yet an author or actor.

At some point in the story, however, someone will slide the author’s pen across the table to someone else at the university to write the next act. The university will receive a tip on the ethics hotline. Or an internal auditor will ask just the right question. Or someone will raise a concern with a supervisor, the human resources department, or the institution’s equity or compliance office. Something will happen that triggers a duty of inquiry.

Act Two unfolds as other university actors do their jobs. Do they report the concerns to the university office with the expertise and authority to discover the real story? Do they know where to report the concern? Are they able to see the whole picture by putting their pieces together with pieces on the desks or in the brains of other university officials? Do they respond in a way that reflects the institution’s values?

Act Three begins as university leaders decide how to respond to the information gathered in Act Two. Act Three portrays how university leaders hold the antagonist accountable and how they remedy any wrongs. Or how they fail to do so. Do leaders protect a university sacred cow? An iconic coach or superstar faculty member? Do they report possible crimes to authorities outside the institution? Do they sweep matters under the rug to protect the university’s image rather than bring hope and healing to impacted members of the community through transparent and prompt accountability? Do they act in the long-term best interest of the institution and the health of the university community or do they act out of self-interest and self-preservation?

Act One may be an indictment of an individual actor, but institutions are never judged based on the first act. Whether Act One’s tragedy swells to existential proportions depends on what happens in the rest of the story.

In the second and third acts, the institution itself is the central character. The second and third acts provide university leaders with an opportunity to write a great story—a narrative that vindicates institutional values and demonstrates its character to anyone watching the drama unfold. But a poorly written second or third act can turn the university itself into a villain rather than a hero.

What then can institutions and trustees do to individual misconduct does not lead to an institutional crisis? Write a good prologue.

The Federal Sentencing Guidelines for Organizations are a good place to begin. The guidelines counsel an organization to build effective training, ethics, and compliance programs. If an organization can demonstrate that a crime happened despite its efforts to create an ethical culture, to detect misconduct, and to hold people accountable, then the organization is less likely to be held responsible for crimes committed by its employees.

A good prologue includes a healthy, ethical culture with the right tone at the top. A university cannot always prevent misconduct by the antagonist in Act One, but a culture of engagement, transparency, and accountability, with clear reporting pathways, may decrease the likelihood that bad actors go undetected, thus shortening Act One and mitigating its impact.

To write a good prologue, the offices most likely to receive reports of misconduct or that monitor university controls and compliance systems must be well resourced and staffed by strong professionals steeped in institutional values. University executives and trustees must ask questions about controls, audit cycles, training, and reporting pathways. Regular reports from management on these topics are central to healthy governance.

The right institutional culture, values, training, and compliance systems can help ensure that Act One’s tragedy is resolved before the end of the drama, with the institution itself seen as a victim of the misconduct, and maybe even a hero.

Lee Tyner is general counsel at Texas Christian University. Lee.tyner@tcu.edu.

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