Recent Institutional Crises and Lessons for General Counsel C. Peter Magrath, PhD Former President of State University of New York at Binghamton José D. Padilla Vice President & General Counsel, DePaul University Tomas L. Stafford General Counsel, University of Wisconsin System Scott L. Warner Partner, Franczek Radelet P.C ion

Recent Institutional Crises Penn State Child Abuse Case, Tomas Stafford University of Virginia’s Resignation and Reinstatement of its President, Scott Warner UC Davis Student Protests, José Padilla

Tomas Stafford Penn State Child Abuse Case

Lessons Learned from Penn State Higher education institutions that fail to adequately assess and minimize risk associated with the presence of minors on campus do so at their peril. University administration must fully disclose all major risks to the institution’s governing board. Institutional governing boards must exercise appropriate oversight to ensure accountability. Governing boards and university administration must exercise appropriate control over major college sports programs.

Scott Warner University of Virginia’s Resignation and Reinstatement of its President

Lessons Learned from UVA The process used to make decisions at institutions of higher education is just as important – if not more important in some instances – than the substance of those decisions. It is essential for governing boards to understand and appreciate the important role that shared governance plays in the higher education setting. Faculty members, in particular, can wield significant influence on how various decisions are received. An institution’s board and president should develop a mechanism to facilitate frequent communication about the board’s policy objectives and the president’s performance in light of those objectives. Governing boards and senior administrators should have a strategy for communicating about important decisions so that the process by which such decisions were reached, as well as the substantive rationale underlying those decisions, are transparent to those affected by the decisions and other stakeholders.

José Padilla UC Davis Student Protests

Lessons Learned from UC Davis Have A Small, Nimble and Structured Leadership Team: A university should have a small yet structured leadership team developing tactics to respond nimbly to a provocative student protest, such as a sit-in or occupation. It should be led by the President because he/she alone should formally approve of aggressive measures like arrest and removal. Legal Basis for Actions in Response to Student Protest: The university should ensure that it has proper legal authority to take aggressive action such as removal, arrest or application of physical force. Bend But Do Not Break: Institutions should follow a philosophy of “bending/not breaking,” in how they confront demonstrations: tolerating as much inconvenience as university operations can stand, while articulating clear lines that demonstrators cannot cross. If they cross them, then administrators can use aggressive measures as last resorts, but in the least forceful way possible.