Does "burying" and "silencing the complaint" protect universities' reputation?
Universities often cite protecting their reputation as the reason why they do not deal with wrongdoing and complaints properly: "Institutions are tempted to put their own reputation ahead of the allegations, and dealing with something that has an impact on the lives of individuals. They try and find ways of burying it and dealing with it in a secretive way. We know this, it’s about silencing the complaint." (Baroness Helena Kennedy QC, former head of Mansfield College, Oxford)
Universities seem to work on the assumption that they are in control of the information regarding their wrongdoing and cover-ups. In reality, universities are not in control of what information reaches the public domain: it is the victim who is in control because they can choose to disclose it to the media or share it on social media.
Firstly, evidence of wrongdoing is likely to exist in the form of texts, emails and similar because these are common communication methods. All these create permanent records that are often contemporaneous to the events, virtually permanent and easily copied and transferred. The creation and sharing of this evidence is outside the university's control. However, universities appear to be completely oblivious to the fact that today most complainants have evidence that the university failed them.
For example, in my experiences at Oxford, I created logs and emails that later proved what had happened. My actions were outside Oxford's control: the university could not control what I did. The only thing universities can control is how they conduct themselves in the first place.
Much of the evidence is in computer files, emails, texts, which can also be easily accessed and copied by anyone with access, such as disgruntled employees and whistleblowers on malpractice and corruption of the university. Therefore, universities' exposure to risk can also come from within.
Secondly, accounts of wrongdoing and evidence can be shared with journalists, online and on social media easily and free of charge. The internet has existed for decades and social media platforms such as Facebook and Twitter have existed since the mid-2000s. Yet universities and their advisors (see below) appear to be unaware that the environment in which they operate has drastically changed over the last 20 years and have certainly not adapted to it. Sometimes the media takes hold of a story and articles, blogs and media records can be created across the world without the university having any control over this process, such as in the Anglia Ruskin 'Mickey Mouse' degree case.
Students and staff often feel doubly-wronged by the university when they seek redress within the university: the university controls the complaints process, which is often biased and can be intentionally rigged to reach a desired outcome (see below). When people do not have recourse to justice, they are likely to look for help and support elsewhere, social media being the ideal place.
Universities appear to have absolutely no clue as to the image they project of themselves when they enable or cover up issues that matter to society such as sexual misconduct (such as the Warwick Scandal), equality (see also the media attention garnered by the Trinity Hall Scandal), bullying and poor quality of teaching and poor quality courses: these issues generate volumes of media and social media attention.
Universities cannot control what is shared on the internet or social media. Again, I decided to share my experiences (backed up by permanent evidence created at the time of the events) online and Oxford had no control over this. Even victims who received compensation or who signed an NDA covering up wrongdoing (which may not even to be valid), are free to share their stories online, on social media or the media, and universities cannot control this. They can threaten the victim at the time, but with time their power dwindles.
They cannot even control the timing or method of disclosure: this can happen immediately after the wrongdoing or years later. It is not the university's choice, but the choice of the person holding the information. Damage flowing from the disclosure can be just as high, or even higher, in the future.
All universities have control over is (1) whether they have systems in place that reduce the likelihood of people committing wrongdoing, and (2) how they deal with that wrongdoing once it happens. The rest is completely outside their control: yet universities behave as if they were capable of controlling what they cannot.
Ultimately, although universities seem to believe that they are protecting their reputation by "burying" and "silencing the complaint", the consequence is to push complaints on platforms they cannot control. Not only are they creating risk by committing wrongdoing, they are magnifying that risk by pushing the evidence into the public domain.
In short, universities appear to have a poor understanding of risk, especially reputational risk, and of the environment in which they operate. Their actions contribute to creating high levels of reputational risk for themselves and their staff.
Once the reputational risk materialises there can be serious financial damage to the institution. For example, both Warwick and Trinity Hall suffered financial damage as a result of scandals that adversely impacted on donations or donations campaigns. The Sanger Scandal shows that institutions can suffer financial and reputational damage, as well as the risk losing commercial and research partners. Their reputations have been tarnished and phrases such as the "Warwick Scandal" and the "Sanger Scandal" are now synonymous with the institutions.
Universities' advisers and lawyers
Universities' internal or external advisers such as lawyers may not understand risk either. There are many examples of this, including:
- The Warwick Scandal, where the university's Head of PR, Peter Dunn, was put in charge of the investigations into sexual misconduct allegations. The victims found him "very accusatory from the beginning", which - in turn - raised concerns not only about whether he had the skills to deal with the situation at hand but also about whether he was attempting to "protect" the university's reputation. Dunn was Warwick's "Head of PR", which - at least on paper - would mean he has an excellent understanding of reputational risk and how to minimise it. However, apparently he neither realised nor advised Warwick that by having the Head of PR lead a sexual misconduct investigation, as well as leading such investigation in a 'very accusatory' way would cause severe damage to Warwick's reputation. If the "Head of PR" fails to understand reputational risk, what hope is there for any other adviser?
- Lawyers can in fact be even worse at understanding reputational risk. A barrister advised Trinity Hall, Cambridge, as to whether they should re-admit a fellow, Dr Peter Hutchinson, who had been removed on grounds of sexual misconduct. He advised that if the college faced legal action from the fellow, he could be made a “martyr”, However, the barrister did not warn the college that - if Hutchinson were to be re-admitted - Trinity Hall's reputation would likely suffer substantial damage. As a consequence of re-admitting Hutchinson, Trinity Hall became the subject of widespread national and international media attention and social media backlash for failing to consider student and staff safety and the importance of gender equality. This indicates that the barrister did not have an understanding of how society would react with allegations of universities' failing to protect students' and staff's safety and to promote equality.
- Another example is Paul Greatorex, an education law barrister with 20 years' experience of advising universities.
- Facing a complaint from a client, he decided to settle after a 15-page document detailing the outcome had been issued. At that point, Paul Greatorex had already spent time working and presenting his defence. If he had intended to settle, a cost/benefit analysis would have likely shown that he would likely should have done it before spending time on defending the complaint. Barristers are self-employed and run their own practice as a business. Did he run a cost/benefit analysis at all? Would he be able to advise his clients on this?
- Paul Greatorex's chambers' complaint process creates an information asymmetry giving an advantage to the person complained about, as they receive information on the complaint but the complainant does not receive information on the defence (other than anything mentioned in the "outcome" document). During the settlement exchanges, he shared information in his defence that strengthened the complainant's case even though there was no apparent reason to share that information. This shows that he may have a poor understanding of information advantage.
- Throughout this process, Paul Greatorex seemed completely unaware of the reputational risks involved in creating and sharing information potentially damaging to himself and his business with a complainant who could easily put the information online and on social media without his control. Did Paul Greatorex consider reputational risk at all? Would he be able to advise universities correctly on this?
These examples show that universities' advisers appear to have similar mindset to universities: they seem unlikely to use concepts such as cost/benefit analysis, they seem to have a poor understanding of risk and information control. Once the information is created and in possession of third parties, the risk is created and they cannot assess or control the risk.
Lawyers and their advisors can also share information damaging to universities in casual social media conversations. For example, an external investigation company lost a number of clients because they were unwilling to "investigate to the institutions' predetermined outcome" and lawyers have been disinstructed by universities because they gave "advice that universities administrators didn't like". This information shows that university investigations may be dishonest and biased against the complainant. Once again, universities do not have control over advisers putting this damaging information in the public domain.
Universities and their advisers are intelligent: the concept of risk at this level is very simple to understand. So why does the evidence suggest that universities do not understand risk? Is it likely that universities and their advisers and incompetent? Or do universities operate on a delusion of entitlement and untouchability?