Higher ed academic fraud investigations: A better way
Academic fraud accusations create a myriad of challenges for colleges and universities. Many questions arise. What violations of a rule, regulation or statute occurred? Who was involved? Did anyone turn a blind eye? Unfortunately, most universities are not skilled at answering these questions in a fair and timely manner.
Conducting such investigations is difficult and time-consuming work and it may be in an academic institution’s best interest to leave such work to outside professionals.
The traditional university model of an in-house administrative investigation run by some combination of university administrators and professors is a disservice to both the accused and the university. It is arcane and inefficient.
The results often lack the credibility and reliability of a truly independent investigation carried out by a fact-finding expert. Universities should adopt the long-standing corporate model—the use of an outside investigator hired to investigate, report the findings and make recommendations to decision-makers.
Universities typically use a panel of professors to investigate fraud charges. They have knowledge of the underlying subject area, but no direct professional relationship with the accused.
There are benefits to this approach. Professors are likely to understand the operations and culture of an institution and possess the appropriate scholarly expertise required. In-house investigations may also prove to be less costly.
However, there are serious drawbacks. It is difficult for any institution to select a panel that is free of bias and that assures the community of its objectivity and fairness. Moreover, as a practical matter, it is not a professor’s job to conduct investigations and it is rarely a priority.
Their schedules make it difficult for panels to meet regularly, often leading to a process that can drag on for months, if not years. This is unfair to the accused and also puts great strain on the entire institution.
The costs of hiring an outside investigator, although not insignificant, should be weighed against the costs of an inefficient and lengthy in-house investigation. Non-monetary costs such as morale and reputation should also be considered.
Information gathering is the panel’s first task—it’s one that most professors have no experience in. Equally daunting is managing the two most important sources of information in any investigation: documents and witnesses.
A critical part of any investigation is the preservation, collection and review of emails and other electronically stored information. This process has become highly specialized and may require extensive technical capabilities.
Conducting witness interviews is perhaps the most crucial fact-finding step. There is an art to conducting an investigation through witness interviews. Having a panel of three scientists asking inartfully phrased questions of a witness under oath, with members of the administration present, is not the best way to gather relevant facts.
A better way
Corporations typically retain outside counsel, usually under the supervision of a special committee of the board of directors. In an academic setting, attorney investigators could report to an independent panel of professors or administrators.
The independent investigation by outside counsel has become a valuable tool for corporations facing scrutiny from regulators, shareholders and even law enforcement.
For universities, the research being investigated often involves federal money—which means scrutiny from law enforcement may soon follow when allegations surface. Like corporations, colleges and universities should prepare for such scrutiny by retaining an independent investigator.
Jonathan L. Kotlier is a partner and chair of the white collar defense practice group at Nutter legal firm in Boston. Joseph T. Toomey is an associate in Nutter’s litigation department.
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