Those who are American college football enthusiasts and those in the American academic community are probably well aware of the headlines generated earlier this year about the Baylor football program. Reports by media about the Baylor University football program's failure to address sexual assault allegations have again raised questions about collegiate athletic programs being allowed to operate "outside the lines."
As with other programs that have come under similar scrutiny, the fallout at Baylor has led to the firing or demotion of university leaders, athletic department personnel, and coaches. This pattern is all too familiar and wholly inadequate when considering that the double dose of trauma inflicted on victims of sexual violence and institutional indifference could have been avoided.
Findings of fact released by the Baylor University Board of Regents — based on an independent external investigation by the law firm of Pepper Hamilton — reflect a sordid subculture within Baylor's football program. An ad hoc system of discipline that was inconsistent with the university's policies operated with impunity and reinforced the perception that rules applicable to other students did not apply to members of the football program.
Baylor's Board of Regents ultimately did the right thing when faced with the mounting evidence that something was clearly amiss in the athletic department. Yet one has to wonder where were the Regents during all of those years where the evidence was mounting? It would be too easy to categorize the Baylor scandal as simply a case of subculture within a prominent university going off the rails. Indeed, the findings of fact paint a much more damning picture of systemic governance failures at Baylor that led to predictable consequences. There are lessons from Baylor not only for board members and executives in the academic community, but for those in the corporate and other sectors as well.
Bad things can happen when mandates aren't met in a timely fashion. One of the key findings of the external investigation was Baylor's "fundamental failure" to implement Title IX of the Education Amendments of 1972 and the Violence Against Women Reauthorization Act of 2013. These two key pieces of federal legislation are foundational to protecting students from sexual harassment and violence. According to the investigation: "Implementation efforts were slow, ad hoc, diffuse, and uncoordinated. . . . As a result, Baylor lacked the sufficient infrastructure and an informed policy."
Even when the university finally met the mandate to hire a Title IX coordinator, the individual "did not have sufficient institutional support from senior leadership, or experienced and trained supervision, necessary to promote timely and effective implementation," according to the findings of fact.
Failure to establish adequate controls creates a vacuum where bad things can happen. Before the 2014-15 academic year, Baylor failed to:
- Provide student conduct training and education.
- Identify and train responsible employees under Title IX.
- Provide students clear information about reporting options and campus resources.
- Create a centralized process for ensuring reports reached the Title IX coordinator, and more.
The conclusion from the findings of fact: "Institutional failures at every level of Baylor's administration directly impacted the response to individual cases and the Baylor community as a whole."
Poor compliance oversight allows problems to fester. Without a proactive compliance function, Baylor failed to identify the nature of risks associated with sexual and gender-based harassment and violence. "The University lacked a proactive compliance function that would have identified the nature of the risks attendant to sexual and gender-based harassment and violence and interpersonal violence, the likelihood of occurrence, and the adequacy of existing controls to ensure an informed and effective institutional response," according to the findings of fact.
Unintended consequences of well-intentioned policies can contribute to governance failures elsewhere. University rules related to alcohol and drug use by students created barriers to reporting. Before August 2015, the University had no amnesty policy for alcohol or other drug violations when reporting misconduct. "Perceived judgmental responses by administrators based on a complainant's alcohol or other drug use or prior consensual sexual activity also discouraged reporting or continued participation in the process," according to the findings of fact.
Ultimately, governance is culture. The 13-page findings of fact is painful reading. The long list of failures uncovered by the external investigation is particularly galling when one considers the consequences of these failures. An even more painful observation from the findings suggests the lack of compliance oversight may have contributed to preventable incidents.
I could delve further into important questions such as, when is executive incompetence a cultural issue, was clearly unacceptable behavior rationalized to maintain success on the football field, was the Baylor football subculture the culprit or simply a symptom of significant institutional problems? But I believe it is more important to simply point out that the Baylor situation unmistakably reflects how closely governance and culture are intertwined. Where governance fails, unwanted culture flourishes. Where toxic culture exists, governance erodes.
Finally, it is important to note that I believe the culture exposed within the athletics program at Baylor is not an isolated phenomenon in the American university community. I fear that athletics programs have become such extraordinary sources of revenue that they are often seen as a third rail by university administrators and boards – touch them at your peril. I am hopeful that the consequences at Baylor will serve as the long-needed wake-up call for those in governance roles that if they look away, they validate subcultures and become part of them.
As always, I look forward to your comments.