Two years ago, Baylor University released a 13-page document outlining the “fundamental failure” of administrators and others to adequately respond to sexual assault on the campus. The scathing language in those “findings of fact” was based on a campuswide, “independent” investigation by Pepper Hamilton, a Philadelphia law firm.
The findings led to the demotion of Kenneth W. Starr, the Texas university’s president, who later resigned, and the firing of Art Briles, Baylor’s beloved football coach.
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Two years ago, Baylor University released a 13-page document outlining the “fundamental failure” of administrators and others to adequately respond to sexual assault on the campus. The scathing language in those “findings of fact” was based on a campuswide, “independent” investigation by Pepper Hamilton, a Philadelphia law firm.
The findings led to the demotion of Kenneth W. Starr, the Texas university’s president, who later resigned, and the firing of Art Briles, Baylor’s beloved football coach.
But damning allegations in a recent deposition, in which Baylor’s athletic director at the time called the findings document “phony,” have cast fresh scrutiny on firms like Pepper Hamilton. Thanks to the work of Gina Maisto Smith and Leslie M. Gomez, both former sex-crime prosecutors, Pepper Hamilton has in recent years secured a reputation as the go-to crew for colleges embroiled in sexual-assault crises, including Amherst College,Occidental College, and the University of North Carolina at Chapel Hill.
College leaders describe such reviews as objective and neutral, and hold them up as evidence that they’re committed to complying with Title IX, the federal gender-equity law, or to reforming the campus culture after a scandal breaks.
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Yet some critics allege that the lawyers, paid by the college in question, have incentives to serve institutional interests, not to unearth and expose any failings. The critics also question the dual roles such firms can play, investigating a college at one point and later defending that same college in court.
Ian McCaw, who was Baylor’s athletic director for more than 13 years and now holds the same job at Liberty University, made his accusations in a deposition conducted by lawyers for 10 women who are suing Baylor, saying its officials mishandled their sexual-assault cases. Parts of the deposition were quoted in a motion filed last week in a U.S. district court in Texas.
McCaw said, according to the motion, that he spoke with Smith, then of Pepper Hamilton, during the lawyers’ investigation. McCaw “asked what final work product they would provide to the university. She said it would be up to the regents. They may want a detailed document. They may want a summary report, or they may ask us to whitewash the whole thing.”
Then, McCaw said, several Baylor regents and the university’s general counsel decided on a strategy of releasing a “false” and “misleading finding of fact skewed to make the football program look bad to cover up the campuswide failings.” That, he said, was part of “an elaborate plan that essentially scapegoated black football players and the football program for being responsible for what was a decades-long, universitywide sexual-assault scandal.”
‘Straight Back to Square One’
The Baylor document outlined specifics only in the findings that implicated the football team, the motion said, and omitted details concerning the who, what, when, and where from the broader institutional findings. McCaw was put on probation after the investigation was completed, and he resigned shortly afterward.
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An editorial in the Waco Tribune-Herald said McCaw’s deposition “takes us straight back to Square One” in terms of Baylor fixing its cultural failures. “McCaw’s damning testimony suggests that Baylor adroitly employed these findings to elude decades-long, campuswide culpability in the scandal by unfairly heaping much blame on Baylor’s football program and popular coach Art Briles,” the editorial said.
A Dallas Morning Newscolumnist called for a new independent investigation into Baylor, writing that “the university needs to start all over and get it right this time.”
The university needs to start all over and get it right this time.
Baylor addressed McCaw’s comments in a response filed in court on Thursday. The findings document, the response states, “quite soberly and seriously recognized ‘[i]nstitutional failures at every level’ of administration during the three years reviewed by Pepper Hamilton. … The written findings are the opposite of a cover-up of any kind.” In a statement, university officials called McCaw’s allegations “bizarre” and “blatantly false.”
Baylor unsuccessfully fought the release of documents and materials used by Pepper Hamilton lawyers during their investigation.
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That review was led by Smith and Gomez, who presented the results of their investigation orally to the university’s board, which then compiled the findings document. A full report was never released; Baylor officials have said that such a report doesn’t exist. The university did release a document outlining Pepper Hamilton’s 105 recommendations for change at Baylor. Smith and Gomez have since moved to Cozen O’Connor, another firm based in Philadelphia, and continue to conduct campus investigations.
Smith and Gomez both declined to comment, saying they don’t discuss their campus work publicly and citing their previous statements about Baylor. The review, Smith said in a 2016 news conference, had been conducted “in a painstakingly detailed, thorough, and rigorous manner.” Their investigation at Occidental, in 2014, drew criticism from faculty members who said the resulting report was one-sided.
Independent and Candid
In the fall of 2016 a committee of Baylor regents reviewed the Pepper Hamilton investigation in light of concerns raised about its objectivity and fairness. The regents concluded that the investigation had been “comprehensive, unbiased, and professional.”
Jason Cook, a Baylor spokesman, added: “The term ‘whitewash’ was never used by Gina Maisto Smith, nor did she suggest such a strategy. Her firm’s charge was to report to the board, which would then determine the strategy and presentation format.”
Pepper Hamilton, Cozen O’Connor, and similar firms have become key parts of the playbook colleges use when responding to sexual-assault scandals. Officials hire the lawyers — at rates that can run upward of $600 an hour — to dive into an institution’s policies, practices, and legal compliance. The investigations are generally presented as independent and objective.
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Michigan State University paid Pepper Hamilton $115,000 in 2015 to review its Title IX program. Emily Guerrant, a university spokeswoman, didn’t specify which new policies or decisions had come directly from Pepper Hamilton’s work, but she said the lawyers’ guidance had “informed” various changes, such as the university’s creation of an Office of Institutional Equity.
Michigan State just hired the firm again — this time, to help represent it in court — as the university faces a barrage of lawsuits and investigations related to the Larry Nassar sexual-abuse scandal.
Other college administrators have also praised the work of lawyers like Smith and Gomez, and said they had played key roles in helping the institutions improve their sexual-assault policies.
‘The Appearance of Impartiality’
But Wendy Murphy, a lawyer who teaches sexual-violence law and helps students file sexual-assault and sexual-discrimination complaints, said she and her colleagues feel the law firms’ investigations are designed primarily to protect the institutions.
Murphy said she remembers seeing the Baylor investigation described as “independent,” and laughing out loud. “Universities are not going to pay these law firms to actually be impartial,” she said. “They’re doing it to create the appearance of impartiality.”
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“Time and again, you see Pepper Hamilton either recommending inadequate remedies or not exactly looking systemically at the real picture — and yet making an effort to not appear to be doing a whitewash,” she continued. “So they will inject bits and pieces of seemingly harsh language, and of course that gets the headlines.” (A spokesman for Pepper Hamilton didn’t respond to a request for comment.)
As happened at Baylor, lawyers will often present oral reports to campus officials so there’s no written record that can be uncovered during court proceedings, said Donna A. Lopiano, formerly director of women’s athletics at the University of Texas at Austin and now a consultant who works with colleges.
“That’s how they market themselves: If you hire me, I’m an attorney, I can speak to your attorney, we’re protected by attorney privilege, and whatever I find is not discoverable,” Lopiano said.
Then again, colleges that want to audit their sexual-assault responses have limited options, said Jody Shipper, who runs a nonprofit group that helps small colleges comply with Title IX. Their options are having an internal administrator conduct a review, Shipper said, or hiring an external investigator.
The latter, she said, is often the best way for a college to secure the public’s trust in the process. “Then the story is, Who is doing the work?” she said. “You have to decide whether you’re bringing someone in who will — wink, wink — get you where you want to go, or someone who will not want to shy away.”
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Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.