Wednesday, May 30, 2018

Scandal, Culture Change, and Discipline at USC: The Emerging Roles of Bureaucracies, Faculty, and Litigation in Institutional Risk-Compliance Regimes

Universities, like other large institutions, have been plagued by scandal related to sexual misconduct.  Among the latest institutions facing significant disruption on the basis of an alleged wrongful failure of administrators to prevent or remedy (through for example appropriate working systems of monitoring and mitigation) such sexual misconduct  is the University of Southern California.  USC is now in the midst of the consequences of "a growing scandal over abuse of students by a campus gynecologist, George Tyndall, and other incidents in which the university is perceived to have failed to act on misconduct by powerful officials." (Scott Jaschik, USC President Will Step Down, Inside Higher Education 29 May 2018). 

This post considers the way that such scandals have now acquired their own patterns of response.  It suggests the way that for large institutions, mere reliance on institutional reporting and monitoring systems, even those combined with robust complaint avenues, are rarely sufficient to produce a robust and effective response (See,On the Management of Scandal in the Modern University; Some Lessons and Insights for Times of Crisis; for earlier reflections in other institutions see, e.g., here, here, here, here, here).  Accountability might be far more effective with a strong and well developed system of both internal and external stakeholder action, one that makes it more difficult for senior administrators to seek shelter within their self reflexive managerial cocoons.  For internal action, the protections of tenure academic freedom are essential. For external sanctions, a robust social media and news establishment is essential for communicating complaints to the larger markets in which the university operates and on which it is dependent (made up of alumni, donors, regulators and students). 

This scandal has cost USC's president his job recently.
Despite growing calls for his resignation, board leaders until Friday backed Nikias, who is credited with raising billions of dollars for the institution and using that money to recruit top students and faculty members.

On Tuesday, after 200 faculty members called for Nikias to be replaced, the Executive Committee of the board issued a statement saying that it had "full confidence in President Nikias’ leadership, ethics and values and is certain that he will successfully guide our community forward."

But on Friday, a statement from the same committee announced a new direction.

"We have heard the message that something is broken and that urgent and profound actions are needed," the statement said. "Today, President Nikias and the Executive Committee of the Board of Trustees have agreed to begin an orderly transition and commence the process of selecting a new president. We recognize the need for change and are committed to a stable transition. Please know that our actions will be swift and thorough, but we ask for your patience as we manage a complex process with due diligence."

The statement concluded by saying, "There is nothing more sacred to this board than the well-being of our students. We will be guided solely by what is in the best interest of this great university." (Scott Jaschik, USC President Will Step Down, Inside Higher Education 29 May 2018).
But the scandal had already been embedded in other scandals that had surfaced at the university. (Ibid, "noting the case of Carmen A. Puliafito, the now former dean of the medical school, who lost his job amid a series of stunning reports in the Times. Prior to resigning as dean, the newspaper reported, he had spent considerable time socializing with criminals and others who said he used methamphetamine and other drugs with them.").

The faculty letter appears to accelerate consideration of the issues, in terms, at least, of administrative accountability. 
In a letter to the USC Board of Trustees, the faculty members wrote that they had come together to "express our outrage and disappointment over the mounting evidence of President Nikias' failure to protect our students, our staff, and our colleagues from repeated and pervasive sexual harassment and misconduct."
"We call upon President Nikias to step aside, and upon the Board of Trustees to restore moral leadership to the university," they wrote. (, 200 USC professors demand Nikias step down; trustees express 'full confidence' in president, Los Angeles Times 22 May 2018).
The letter was remarkable for several reasons.  The first was that it was written and signed despite the possibility of retaliation.  To that end, the protections of tenure and academic freedom in the context of shared governance were essential.  Corporatized universities with vestigial shared governance would substantially weaken its ability to implement robust accountability of its senior leaders precisely because they would be insulated by the very systems put n place to monitor and respond to scandal--when the monitoring or response ineffectiveness actually rests on the actions of those charged with their control.  Consider in that context the perhaps well meaning letter by the Provost of USC to the faculty--one that exhibits the characteristics of an administrator who is locked within the logic of his position (Letter to colleagues, May 21, 2018, Message to USC Faculty and Staff, From: Michael W. Quick, Provost and Senior Vice President for Academic Affairs ("The vast majority of people I have heard from ask about how senior leadership could not have known.  The frustrating truth is, we didn’t — not until 2017, when we were briefed about the OED findings of 2016. . . We have learned from previous events where our community did not feel well informed or felt that the university was not being transparent.  So, we have tried to keep you updated through memos, and we have created a website detailing what we knew and when we knew it.  I refer you here for the details. . . ")). 

The response thus followed a pattern.  First a suggestion that the system did not produce information until well into the scandal.  Then the suggestion of a vigorous response.  This consisted of a renewed effort at informational transparency (with no intention of permitting anything like engagement transparency).  Beyond that the response also follows a fairly standard pattern. First, there is an announcement of the creation of further layers f bureaucracy that are meant to oversee the area from which the scandal arose, and to heighten compliance and reporting in some way within a more complex bureaucratic system 
In the last few days, we let go two people who had responsibility to oversee the quality of health care our students receive. We have a new director of student health, Dr. Sarah Van Orman, who is a nationally recognized expert in this area. She is deeply concerned about this matter and we promise that she will have all the resources and support she needs to provide the highest quality care to our students. Right now, she is in the process of making job offers to two first-rate gynecologists and she has our full support to revamp operations as she sees fit. Last year’s move to integrate the student health centers into our academic medical center ensures that there are even more checks and balances on the system. (Ibid. ).
And then, there is a mea culpa, but written carefully ro avoid any possible admission of liability.  That is followed by a commitment to develop a new bureaucratic apparatus to ensure better systems in place for monitoring and compliance--to be developed by a committee composed for the most part of administrators.
Absolutely we should have known about this much sooner, and we are all going to have to work together to create a culture and structure where reporting is safer, easier, and a responsibility we all take seriously, no matter our rank or position. That has been the charge that our Task Force on Workplace Standards and Employee Wellness has been grappling with over the past year.
As for the mass of stakeholders at the University, the standard offer is made--to "engage in difficult conversations" (Ibid), ones overseen and managed by senior administrators and compliance officials (with university lawyers vigilantly hovering in the background most likely).  Stakeholders can have all the conversation they like; administrators will then craft those changes that suit the context--in their judgment. The object is "culture creation" from out of bureaucratic engagement.
Rather, let’s come together to have the honest difficult conversations, and to make the necessary changes so that USC becomes the place we all know it can be. This is an issue of creating a new and improved culture for everyone. The president will shortly be putting forward steps to start us in that direction, but it is only a start, and it will not work without everyone committing to doing the hard work to make it a reality. (Ibid).
But those culture changes are most likely to result form the litigation that the University will now face. The law firms that have initiated the suit on behalf of their clients put of a press release, the contents of which follow:

First California State Class Action Lawsuits Filed Against University of Southern California For Failing To Protect Students From Sexual Abuse By USC Gynecologist Dr. George Tyndall

LOS ANGELES and BALTIMORE, May 25, 2018 (GLOBE NEWSWIRE) -- Janet, Janet and Suggs, LLC managing partner Howard A. Janet, one of the lawyers who spearheaded the $190,000,000 settlement of the class action against The Johns Hopkins Hospital on behalf of approximately 8,000 women who alleged they were sexually abused and illicitly photographed by OB/GYN Dr. Nikita Levy, and founding and managing partner Mike Arias of Arias Sanguinetti Wang & Torrijos, LLP have filed a class action against the University of Southern California. The lawsuits are the first class actions to be filed in California state court on behalf of thousands of female students who were allegedly sexually abused and illicitly photographed by a USC OB/GYN.

“The conduct alleged to have been committed by USC OB/GYN Dr. George Tyndall is eerily similar to that of Dr. Levy. As with the Hopkins case, this case centers on allegations of grossly improper pelvic exams that involved improper probing, at times without gloves, sexually charged remarks and illicit photographing of genitalia,” said Mr. Janet. “It appears that Dr. Tyndall, like Dr. Levy at Hopkins, violated the sacred trust between physicians and patients – specifically the trust between male OB/GYNs and patients – in a methodical and disturbing fashion by preying on young, unsuspecting women.”

Dr. Tyndall practiced at USC’s Engemann Student Health Center from 1987 until he was suspended in 2016. He claimed in a recent article to have provided care to “thousands and thousands of Trojan women” during his time at USC.

The lawsuits allege that USC received repeated complaints from students and co-workers, but failed to take appropriate steps to investigate those complaints. Finally, in 2016, USC hired an outside firm to investigate Dr. Tyndall’s conduct, according to media reports. The firm, MDReview, is the nation’s only physician-led peer review medical consulting firm. The investigation found that Dr. Tyndall "exhibited unprofessional and inappropriate behavior" and that his pelvic exams were outside "current standards of care.”

“Shockingly, it appears USC agreed to enter a “no finding” conclusion related to the investigation, characterize Tyndall’s departure as a resignation, and actually provide him severance pay despite the findings from MDReview’s investigation,” said Mr. Janet. USC, in a recent press statement, took the position that it should have reported Dr. Tyndall to the Medical Board of California eight months earlier than it did. Mr. Janet said, “Given the multitude of complaints lodged to the University during much of Dr. Tyndall’s tenure, there is a reasonable basis to conclude that USC should have reported him years, if not decades, earlier.”

The class representative for each class is not identified because of the sensitive nature of the lawsuits. The class representative in each class is referred to as Jane Doe. “USC students treated by Dr. Tyndall had every right to expect that the University had thoroughly vetted him so as to be confident that he’d be practicing ethically and not violate the trust placed in him by students,” said Mike Arias. “It is simply unfathomable that a world-renowned institution like USC would ignore repeated red flags reported to them and allow this man to remain in a position where he could continue his abuse of students.”

The lawsuits also allege that many of the women targeted by Dr. Tyndall were of Chinese or other Asian descent. Also participating in the representation from ASWT is partner Arnold C. Wang, who was born in Taiwan, Republic of China and is fluent in Mandarin, along with Kate Harvey-Lee, a Senior Trial Lawyer at ASWT with extensive experience in complex litigation and class action matters.

For additional information or to join the class, please visit the case information page at Those interested may also contact JJS toll-free at 1-877-692-3862 or Mike Arias and ASWT at 1-855-481-1020.

No comments:

Post a Comment