Posted with the permission of Professor Ryan:
U of O Matters has detailed the deceptive practices of the Barran Liebman law firm in its defense of the administration against Jennifer Freyd’s discrimination suit. This is all the more reason to be alarmed about the administration’s use of Barran Liebman to carry out allegedly neutral investigations of cases involving faculty and administrators. For it threatens to undermine the integrity of the entire investigative process.
Last spring I was asked to participate in an investigation involving two administrators. There were several reasons. I had co-authored one of the relevant policies, the 1995 conflict of interest policy (involving student-faculty “romantic” relationships). And, while I was not a formal complainant, the investigation was provoked by concerns that I and others had raised, one of them involving a personal attack on me for advancing Title IX concerns (Jennifer Freyd and I were both attacked on such grounds around the basketball/rape scandal). I was immediately told by Title IX Director Darci Heroy that the inquiry would be conducted by outside attorneys since her office’s own investigators—seven in all—were “busy”.
My initial concern was how outside attorneys could possibly investigate issues that were, in this case, quite specific to the U of Oregon. My worries were justified. Much time was wasted simply going over what the conflict of interest policy was, how an investigation was triggered, the nature of the complaint process, etc. So we were paying them to learn what our own investigators already know. And their knowledge was inevitably incomplete. At the end of my several hour interview with them, I realized that one of them had never learned, or couldn’t remember, that the conflict of interest policy had recently been substantially changed. They were equally confused on the mandatory reporting policy, also recently changed. So much of the discussion was gibberish.
Moreover, even if they knew the rules they didn’t know the culture. No one in their right mind would hire me to investigate complex issues in, say, a police department because I know nothing about how one works. Or worse, I might imagine I know about it because I’ve watched a lot of police shows on TV. Our own U of Oregon investigators know higher education because they are a part of it. By contrast, the attorneys I spoke with were clueless about what higher education is really like. They thought a department head was a professor’s “boss“ who could hire and fire them; they assumed that faculty could move to another department—or even another unit—at will, rather like high school teachers change home rooms; they asked me how often U of O faculty “checked in” with the president “over lunch at the cafeteria”.
Curious, I submitted a public records request for what all this meandering cost the Oregon taxpayers. Answer: $60,000-70,000.
But that’s not the worst of it.
There were two attorneys from Barran Liebman doing the investigating: a senior partner and a junior associate, just out of law school. I didn’t see the point to multiplying attorneys in this way—except to pad the bill. The junior associate mainly played Badger to the senior partner’s Mr. Toad. I had assumed from the start that outside investigators were being enlisted to ensure neutrality, since the complaints involved administrators. Far from it. Barren Liebman’s specialty is defending administrators against complaints. The senior partner defended Robin Holmes when the administration rifled through the rape victim’s counseling records in the basketball/rape scandal. The junior associate’s web page celebrates his “aggressive defense” of administrators against every imaginal form of discrimination complaint: race, gender, disability, national origins, etc. It notes that he’s also good at rebutting complaints about “wrongful termination, hostile work environment, and intention infliction of emotional distress”.
You name it, these guys can silence it.
This may not be exactly like hiring Rudy Giuliani to conduct an impartial investigation of the Trump White House. But attorneys whose livelihood depends on defending administrators against complaints are not the best people to conduct an allegedly impartial investigation of such complaints.
Most distressing to me, though, was their utter indifference to the victims of sexual assault. I urged them to interview Laura Hanson, a former student of mine whose rape was totally ignored by the U of Oregon Title IX office after she complained; she has since written powerfully about her experience. (See https://www.eugeneweekly.com/2015/05/28/dragged-through-the-mud/.) Barran Liebman agreed to interview her, but ultimately finished their investigation without interviewing Laura—or a single woman complainant. When I learned of this and protested, they responded that the testimony of women complainants like Laura was “irrelevant”, and that my asking them to interview Laura was trying to “control” their investigation. This is not the approach of neutral investigators, who are required by Title IX to “gather all of the information and evidence that is reasonably available and known related to the alleged conduct”. It is the approach of partisan advocates.
A more cynical person than I might suspect that Barran Liebman is brought in by the Title IX office when a “neutral investigation” is needed to decide in favor of administrators. I frankly don’t understand why Title IX inquiries need to be privatized in this way at all. If our own investigators are really so overwhelmed, then we should hire a few more. In any event, no one’s interests are served by employing—as allegedly neutral investigators—attorneys who, as Barran Liebman’s website proclaims, “exclusively represent management in employment, labor, benefits, and higher education law”. No wonder the experiences of those not part of “management”, like Laura Hanson and other victims of sexual assault, are “irrelevant” to them.
Director, Human Rights Program
Institute for Ethics, Law, and Armed Conflict
Blavatnik School of Government
University of Oxford
Oxford Consortium for Human Rights