Sexual Misconduct and the Board: What Role?

November 15, 2013

By: John Gaal

There is no denying that sexual misconduct on campus is a major issue for all institutions today, from both a campus “quality of life” and a risk management perspective.  With all the attention sexual misconduct cases are generating, an appropriate question to consider is what role should the Board of Trustees play in these issues?  The Association of Governing Boards of Universities and Colleges (“AGB”) recently addressed this question.  In its Advisory Statement on Sexual Misconduct, the AGB suggested several practices for governing boards and institutional administrative leadership.    Recognizing the Board’s fiduciary duty to address issues related to the overall campus culture, including sexual misconduct, AGB advises that: 
  • governing Boards should monitor sexual misconduct issues consistent with their oversight of other forms of institutional risk (which requires a balancing that avoids micromanagement but permits being adequately informed so that it can assess institutional effectiveness);
  • Boards should regularly request formal reports from administration detailing the nature of the risk, the likelihood of its occurrence, and the existence and effectiveness of internal controls for risk mitigation (from an overall perspective and not necessarily in terms of any individual case);
  • Boards should encourage dialogue on sexual misconduct, and other issues that are important to the institution’s well being (AGB points out that “scrutinizing information, asking difficult questions, challenging assumptions, and introducing innovative ideas[,] improves the quality of institutional outcomes.”);
  • Boards should promote this dialogue by:
    • discussing legal developments and national trends related to Title IX and sexual misconduct, and making sure they are sufficiently informed as to where their institution stands in terms of compliance with those developments and in light of national trends;
    • discussing these issues with the institution’s administrative leadership and planning for discussions of these issues on an ongoing basis with that leadership (as part of this effort, Boards need to determine what form these discussions will take – will they be with the full board or a board committee -- and establish an appropriate expectation for the administration to keep the Board (or appropriate committee informed);
    • reviewing the institution’s policies in this area and being aware of how they are implemented;
    • confirming that a Title IX Coordinator has been named (and who it is), appropriate training is being provided to members of the institutional community, all parties (complainant and accused) are being treated equally, fairly, and adequately, and the institution is monitoring its overall climate as it relates to sexual misconduct. 
With respect to administrative leadership, AGB suggests: 
  • the institution’s chief executive (with support from others) ensure that the Board receives relevant information regarding these issues and engage the Board in periodic briefings about this topic, both in terms of legal developments and the institution’s response;
  • the chief executive ensure that the Board receives sufficient information to facilitate its effective review of institutional response to sexual misconduct and that this issue is properly part of the Board’s agenda and part of the orientation for new Board members; and
  • the chief executive also ensure that the rest of the institutional community – staff, faculty and students – are aware of the Board’s commitment to campus safety and oversight of related policies. 
These guidelines provide an excellent starting point for ensuring that the Board is properly engaged on this very important topic.  While, as noted by AGB, caution needs to be exercised to avoid micromanagement of the institution, the issue of sexual misconduct is simply too big an issue, on any number of levels, for the Board to fail to get involved and exercise appropriate oversight.