UI Greek Frat Behavior 'Aberrant'?!

September 26, 2012, 9:20 a.m. (now with Sept. 27 and 28 updates); and for one school's alternative to fraternity boys drinking, see "Clean Streets and Creative Consumption; At Last, Less Drinking," Sept. 30.

Alcohol Abuse and Sexual Assault, or "Fine Public Service"?
On September 11 Iowa City Police began investigating an alleged sexual assault at a UI fraternity that occurred September 8. Residents had been charged with alcohol-related offenses earlier this summer. On September 24 the fraternity's national headquarters suspended the group and expelled its current members, citing "hazing and the chapter's failure to comply with our standards . . .." That day the UI mentioned "illegal alcohol consumption" at the fraternity house.

And how has the University responded?

With a defense of the Greek system. As a top administrator put it, “I believe that it is an aberrant incident that does not accurately represent life at the University of Iowa. To the contrary, . . . members of the Greek system . . .provide a great deal of fine public service." Josh O'Leary, "Police investigate sex assault at SAE; Incident was reported earlier this month, before fraternity was closed," Iowa City Press-Citizen, September 26, 2012, p. A1.

That UI assertion was challenged in the first version of this blog entry, September 26. It concluded with, "The problems are endemic. They are not aberrations. They deserve and require proactive approaches." A couple anonymous fraternity advocates responded strongly to that assertion (which engendered a rejoinder from another anonymous blog reader; all are at the bottom of this blog entry).

This morning's [Sept. 28] Gazette, relying on the University's own data, confirms what was admittedly only an assumption on my part two days ago. Diane Heldt, "UI frat’s members had high arrest, citation rate; Sigma Alpha Epsilon was closed by national headquarters this week," The Gazette, September 28, 2012, p. A2. The arrest records, largely alcohol-related, for fraternity and sorority members are substantially above those for other student groups (details below).

As it happens, the arrest record is held by the very fraternity involved in this week's news, SAE. Arrest records for members of Greek houses generally are nothing to brag about, given averages above those for other student populations. But among them, SAE had the highest percentage of members arrested, at 27 percent.

This raises a number of issues.

(1) When the University's own data shows that with regard to Greek houses "the problems are endemic" and "not aberrations," why would a top UI administrator describe SAE's offenses as "an aberrant incident that does not accurately represent" Greek life?

(2) Given SAE's excessively high arrest record, why was there no intervention from the University -- which professes to monitor, and care about this very problem -- before now?

Diane Heldt's story, linked above, reports, "'the figures [on arrests of Greek house members] have generated numerous conversations, particularly between the university administrators and student representatives in the Greek community,' Tom Baker, associate dean of students, said via email Thursday. . . . 'One of the things we’re working on is trying to reduce the [arrest] rates in our fraternity and sorority chapters,' he said."

Let's take UI's administrators at their word: they are "trying to reduce the rates" of arrests of members of Greek houses. But if that is truly the case, wouldn't you think they would have done something -- whether increased security and monitoring, or merely educational programs -- within the house with the single highest arrest record of any Greek house on campus, a house that has been visited by police 28 times in five years -- something more, that is, than merely "numerous conversations"?

The hard copy Gazette contains the reproduction of much of the University's data. Unfortunately, the paper does not appear to have made this valuable information available online. So here are some excerpts:

For 2010-11 the University's data reveals that the percentage of undergraduate males' with arrests was 6%, whereas the rate for fraternity members was 15.1%. Fraternity members may provide "fine public service," but they also provided that year nearly three times the percentage of arrests of male undergraduates generally.

It was not that much better for females. They had lower rates than males, overall, but the sorority sisters were arrested at roughly two times the arrest record for undergraduate females generally: 7.4% vs. 3.8%.

Yes, the rates go up (from 2009-10 to 2010-11) and down (from 2010-11 to 2011-12). But the contrast between the undergraduate population generally, and the arrest records for members of Greek houses persists.

So much for the "aberration."

With regard to the charges of hazing, and the practice of hazing among Greeks nationally, see Jordyn Reiland, "Experts respond to UI Sigma Alpha Epsilon controversy," Daily Iowan, September 26, 2012 ("In 2008 and 2009, ΣΑΕ . . . faced complaints of hazing, in which sanctions were imposed").

With regard to what triggered the most recent investigation, see Jordyn Reiland, "Sigma Alpha Epsilon frat removed from UI campus following 'hazing and violations,'" Daily Iowan, September 25, 2012 ("A current member of the fraternity . . . said he believes an incident that occurred four weeks ago sparked the investigation, which eventually found hazing and violations. According to the member, the fraternity hosted a party during which attendees consumed alcohol. At the party, members found a female lying unconscious on the ground outside the house. The student said members brought the female to the hospital.") For an update on the allegations of sexual assault, see "SAE headquarters says it decided to close UI chapter before learning of investigation," Iowa City Press-Citizen online, September 26, 2012, 4:44 p.m. [hardcopy: Josh O'Leary, "Report: Alleged Victim Sustained Injuries; SAE: Decision Made Before it Knew of Police Probe," Iowa City Press-Citizen, September 27, 2012, p. A1.] And see, Vanessa Miller, "Iowa City police called to now-closed fraternity 28 times in five years," The Gazette, September 27, 2012, p. A5 ("Iowa City police since 2007 have received 28 calls for service to . . . the Sigma Alpha Epsilon fraternity house that was closed earlier this week following hazing allegations and is at the center of a sexual assault investigation.").

For the current housing status of the former fraternity members living in the house, see Stacey Murray, "SAE members have chance for appeal," The Daily Iowan, September 27, 2012.

[Photo credit: Benjamin Roberts / Iowa City Press-Citizen /.] Now don't get me wrong. I'm willing to believe that there are a good many members of fraternities who've chosen the Greek life because they wanted a quiet place to study, and a circle of friends who understand the hazards of binge drinking. And there probably are many a sorority sister who could be said to "be an angel who spends all winter, bringin' the homeless blankets and dinner, a regular Nobel peace prize winner." (From Lee Ann Womack's, "I'll Think of a Reason Later.") See Editorial, "Greeks can lead UI to better reputation," Daily Iowan, September 4, 2012.

But as for the characterization of the punished behavior as an "aberration," it's worthwhile to reproduce Josh O'Leary's recitation of prior Greek troubles on this campus.

The closure of the SAE chapter, which was founded in 1905, is the latest in a long line of UI fraternities that have faced periods of imposed dormancy because of violations in recent years:

• In January 2008, Delta Upsilon International Fraternity closed its 82-year-old UI chapter after four of its members were arrested for allegedly dealing drugs. UI had suspended the chapter the previous month during an investigation.

• International leaders of Phi Gamma Delta suspended its UI chapter and closed its Iowa City house in August 2005 following a party involving alcohol. The fraternity had already been on probation for more than three years, originally stemming from hazing and followed by problems with alcohol.

• Alcohol use and hazing at UI’s Pi Kappa Alpha fraternity prompted school officials to suspend the local chapter in November 2004 for five years. UI said fraternity members provided alcohol to pledges at the chapter house and that some of the eight pledges had performed calisthenics, such as push-ups or jumping jacks, as part of a pledge test, which UI considers hazing.

• UI revoked the Phi Delta Theta fraternity’s recognition in January 2002 after investigating a former fraternity member’s complaint that he and other new members were forced to drink fifths of various hard liquors in a 20-minute stretch. The fraternity admitted alcohol violations but disputed its members engaged in hazing, and UI eventually dropped the hazing charge. In 2009, the Iowa Supreme Court ordered UI pay the fraternity $73,000 in damages.

• In 2000, Pi Kappa Alpha was suspended for one year for having alcohol at its chapter house. Fraternity members were ordered to vacate at that time, as well, because the house was labeled “unfit and unsafe for human habitation.”

• In April 1999, the Delta Tau Delta fraternity vacated its house after its national headquarters suspended the UI chapter for a minimum of four years for violating alcohol and drug policies. The fraternity had been affiliated with UI for 119 years.

• In September 1995, Lambda Chi Alpha pledge Matthew Garafalo, 19, was found dead at the Clinton Street fraternity house. Doctors later determined his blood-alcohol level was nearly twice the legal limit when he died from choking on his own vomit. The fraternity was suspended for five years.

SAE an aberration? I think not.

The problems associated with the Greek culture are similar to those surrounding the campus alcohol consumption culture, and the externalities, conflicts of interest, and resulting culture that are created when we embed in the academy what amounts to farm clubs for the NFL and NBA.

The problems are endemic. They are not aberrations. They deserve and require proactive approaches. Otherwise Josh O'Leary's list is destined to merely increase over time, as each hazing revelation, death, sexual assault, and alcohol-related arrest comes to light, receives media attention to the detriment of the University, and is dismissed as just another "aberration."

# # #

Dominique's Dominos: Strauss-Kahn and Sexual Assault

July 1, 2011, 7:00 p.m. (with additions July 2, 3, 4, 5 and 6, 2011, including resolution of alleged UI football players' sexual assault, 2007)

[And as evidence that (a) the problems on college campuses continue, and (b) have been exacerbated by the predicted Strauss-Kahn outcome, here's an exchange on July 6, 2011, during Tom Ashbrook's "On Point" program:

Tom Ashbrook (TA): Andrew in [city]. Thanks for calling. You're on the air.
Andrew (A): Hi, Tom
TA: Hi.
A: Thanks for taking my call.
TA: Yes, sir.
A: The topic is relevant to my family at this time, and I have an inquiry for Professor Brenner, if she's able to assist.
TA: OK.
A: My daughter, a few weeks ago, was assaulted sexually by a prominent basketball player at one of the two state universities here, . . .
TA: I'm sorry.
A: . . . who had been removed from another state university and was able to transfer in. But my concern is, the university has closed its investigation based on a he-said-she-said type of scenario, which is very frustrating for our family. It obviously raises some concerns about the integrity of the university process. Being both involved with a state university and highly educated on matters of this type, I was wondering if the professor [guest, Professor Hannah Brenner, Michigan State University College of Law] has a suggestion on how we may proceed. My daughter is disinclined to go to law enforcement. Obviously, she does not want to become the maid in the New York City story.
TA: Right. . . .

Tom Ashbrook, "What Does the Dominique Strauss-Kahn Case Mean?" "On Point," WBUR-FM 90.9/NPR, July 6, 2011; Audio, 30:28-31:35.]

Dominique Strauss-Kahn's "mess on both sides"
The media that were so quick to, seemingly, accept the guilt-before-trial of Dominique Strauss-Kahn (then IMF Managing Director, alleged to have raped a New York Sofitel Hotel maid in his $3000-a-day room), now seem equally ferocious in their attack on the credibility of his accuser. And just as they said little about the accuser when judging him, they now make little to no reference to his own past record of sexual assaults, and therefore the credibility of his denials, while disparaging her accusations. [Photo credit: Andrew Harrer/Bloomberg News.]

[The Times' assault on her credibility continued in the July 2 edition, Jim Dwyer and Michael Wilson, "Strauss-Kahn Accuser’s Call Alarmed Prosecutors," New York Times, July 2, 2011, p. A1. By Sunday, the story was still headlining page one, above the fold, in the hard copy edition (although at the bottom of the heap online), but its focus had shifted once again. This time the criticism was not of Strauss-Kahn or his accuser, but of District Attorney Cy Vance, Jr.: "[T]he second-guessing of Mr. Vance’s leadership has intensified in the wake of a string of courtroom losses that culminated in the startling events last week, when prosecutors revealed their concerns about the honesty of the hotel housekeeper . . .. Even a member of the [DA's] finance committee . . . questioned how the case had been handled. . . .Some of the most pointed complaints about Mr. Vance are emanating from the district attorney’s office itself," Alan Feuer, John Eligon and William K. Rashbaum, "Strauss-Kahn Case Adds to Doubts on Prosecutor," New York Times (online), July 3, 2011 (nat'l ed.; headlined, "Crumbled Case Adds to Doubts On Prosecutor; Issues Were Seen Even Before Strauss-Kahn," p. A1).

For a contrasting view, see Joe Nocera, "The D.A. Did the Right Thing," New York Times, July 5, 2011, p. A21 ("For the life of me . . . I can’t see what Vance did wrong. . . . The woman alleged rape, . . . backed up by physical (and other) evidence. She had no criminal record. Her employer vouched for her. The quick decision to indict made a lot of sense, both for legal and practical reasons. Then, as the victim’s credibility crumbled, Vance . . . acknowledged the problems.").]

As a result, as the Times quoted an unnamed official, "It is a mess, a mess on both sides." Jim Dwyer, William K. Rashbaum and John Eligon, "Strauss-Kahn Prosecution Said to be Near Collapse," New York Times, July 1, 2011, p. A1 (New York edition).

[By July 4 there was yet one more rape allegation -- this one in France. Steven Erlanger, "Strauss-Kahn to Face New Sex Complaint in France," New York Times, July 4, 2011 ("Dominique Strauss-Kahn will face another complaint alleging attempted rape, this one in France, the lawyer for a French novelist announced Monday. The novelist, Tristane Banon, 32, claims that Mr. Strauss-Kahn tried to rape her [and she] offered a graphic account of her alleged encounter with Mr. Strauss-Kahn in 2003, saying he grabbed her in a nearly empty apartment as she was interviewing him and dragged her to the floor, pulling off some of her clothes and forcing his hand into her underwear. She said she escaped by kicking him desperately." Her lawyer says her testimony is “solid and well prepared.”) Banon photo credit: Charles Platiau/Reuters.]

By July 5 the Times possessed, and reported, the contents of the hospital counselor's report of the accuser's statement. John Eligon, “In Hospital Report, Housekeeper’s Graphic Account of Attack,” July 5, 2011, p. A16 (“[T]his is the most direct account of the housekeeper’s version of events to be offered so far. It comes from a report prepared by a counselor at St. Luke’s-Roosevelt Hospital Center, where the housekeeper was treated just hours after she said she was attacked, and where she related for one of the first times what happened in the hotel suite. . . . [The] account is suggestive of a serious sexual assault . . ..”)

It makes one at least want to learn more about, if not encourage the U.S. emulation of, the British courts' limitations on the media's coverage of criminal matters. See, e.g., the British 1981 Contempt of Court Act.

In addition to the adverse impact on a "fair and impartial" trial, premature media coverage has an extraordinarily intrusive impact on parties' right to privacy -- the accused as well as the accuser. Clearly the public has an interest in knowing significant changes in the locations and statistics regarding various crimes, or whether a serial killer or rapist is at large. And it has an interest in knowing the outcome, and ultimate jury verdict, in criminal cases -- after the trial is over. But I think the news media has a much tougher case to prove when it comes to their assertion of a public's need to know revelations of the intimate details of an alleged sexual assault before a jury verdict, when the sources of those details are nothing more than the allegations of very interested parties and their lawyers.

And the prosecutors in this case seem little better than the media -- as they are the cause and source of much of what the media is passing along to the public.

At Strauss-Kahn's arraignment, May 16, Assistant District Attorney Artie McConnell, said,

The victim provided very powerful details consistent with violent sexual assault committed by the defendant, which establishes all the necessary elements of the crime he is charged with. She made outcries to multiple witnesses immediately after the incident, both to hotel staff and law enforcement. She was then taken to the hospital and was given a full sexual assault forensic examination. The observations and findings during that exam corroborate her accounts.

His statement at the May 19 bail hearing was consistent:

The complainant in this case has offered a compelling and unwavering story about what occurred in the defendant’s room. She made immediate outcries to multiple witnesses, both to hotel staff and to police. The victim was given a complete and expert forensic examination and the findings from that examination are consistent with her account. The Crime Scene Unit processed the hotel room and the scene, and while those scientific tests have not been completed, the preliminary indications are that forensic evidence that supports the victim’s version of events may be found.

Yesterday [June 30], McConnell and another assistant district attorney provided Strauss-Kahn's defense lawyers a letter setting forth a number of past instances in which the accuser had not been truthful, such as tax returns and her application for asylum. Other law officers revealed she once had a phone conversation with someone in prison for dealing marijuana.

However, with one easily explained exception, none of the incidents contained in the letter has any relevance whatsoever to her version of what occurred during her encounter with Strauss-Kahn on May 14! (The exception has to do with what she did immediately after the attack -- wait for him to descend in the elevator, or go clean another room. Neither is inconsistent with what, if the attack occurred, could have been her state of shock at that time.)

The Times reported that at today's [July 1] hearing,

Prosecutors said they still believed Mr. Strauss-Kahn had forced the woman into sex, but that inconsistencies in her past and account of the moments following the incident could make it hard for jurors to believe her. . . .

Mr. Kenneth Thompson, the woman’s lawyer, . . . insisted that she was still the victim of an attack, saying that her version of events has never wavered. He said some evidence, like bruising she had sustained, was consistent with a nonconsensual encounter. And he said her decision to clean a room was consistent with someone who was confused and upset in the wake of an attack.

John Eligon, "Strauss-Kahn Is Released as Case Teeters," New York Times (online), July 1, 2011, 3:35 p.m. EDT.

My reading of the accounts is that everyone, including Strauss-Kahn and his attorneys, acknowledge that a sexual attack or encounter of some kind occurred. Their version of events is that the accuser's bruises and vaginal tears were "consensual."

I'm willing to accept the assistant district attorneys' assertion that New York's Criminal Procedure Law, 240.20, required at least some of the disclosures in their letter be made to defense counsel. But I also accept Assistant District Attorney McConnell's judgment on May 16th that, "The victim provided very powerful details consistent with violent sexual assault committed by the defendant, which establishes all the necessary elements of the crime he is charged with."

Apparently there are years' old instances in which she did not tell the truth about events in no way related to those on May 14th. But it seems to me the issue of whether that will, in the words of the assistant district attorney, "make it hard for jurors to believe her," is a matter which our legal system has delegated to those very jurors, not assistant district attorneys.

The only issue, the only fact questions, in this case are what happened between the housekeeper and Strauss-Kahn on May 14.

It is irrelevant that numerous women have come forward, or are alleged, to acknowledge affairs, unwanted sexual advances, and sexual violence with Strauss-Kahn -- including a hotel maid in Mexico. Fay Schlesinger, "He was like a gorilla. . . actress's sex claim against former IMF chief as new affair is revealed with Italian widow," London Daily Mail, May 19, 2011. It is equally irrelevant that his accuser may have mentioned in a phone conversation with her boyfriend (in prison) a couple days later something about Strauss-Kahn's wealth. (What may perhaps be relevant are that (a) in the course of that conversation, one she likely presumed was private, her account of the alleged assault squares perfectly with what she had earlier told New York police, and (b) questions as to how that conversation happened to have been recorded, by whom, where a translator of the accuser's language (a “unique dialect of Fulani”) was found, and whether this operation was a violation of law.)

(Another process and privacy issue is raised by "Paul" in a comment on the Times' story regarding the hospital counselor's report of the maid's statement, linked above, "Who leaked this report? I hope my medical records remain more confidential than this." Paul, Plattsburgh, July 5, 2011, 8:22 a.m., http://community.nytimes.com/comments/www.nytimes.com/2011/07/05/nyregion/housekeeper-detailed-strauss-kahn-attack-in-hospital-notes.html?permid=11#comment11.)

Strauss-Kahn could be a serial rapist and his accuser a serial killer. The question still remains: what happened between them on May 14? If her past misrepresentations make her trial testimony about those events less trustworthy, then the prosecution will have to provide additional evidence -- the forensic evidence from the hotel room, the medical experts and their records , her contemporaneous statements to hotel personnel and police, and especially her wiretapped "confidential" description to the prison inmate.

Undoubtedly, other facts will unfold with time. But for now, I tend to share many of the reactions of another lawyer who commented on the New York Times's site, a "Scott F." of Atlantic Beach, Florida:

I do not know if he [Strauss-Kahn] raped the housekeeper. I do not know what went on in DSK's hotel suite at the Sofitel on that morning/afternoon. But I am more than a little suspicious at how quickly the prosecution's case is supposedly unraveling. The anonymous law enforcement officials quoted in the NYT seem to be cheerleaders for DSK.

I am not familiar with any other criminal case where the prosecution did such a gigantic flip-flop about the accused's guilt or innocence under anything close to similar circumstances.

What in the world is going on with this case? . . .

It makes me more than a little uncomfortable . . . that the prosecution is selling its witness/victim down the river so blatantly. I have not yet read about any "lies" that strongly suggest that she was lying about the attack itself.

If the prosecutor is going to wait for a blemish-free victim before it prosecutes another case, he may be sitting idle for quite some time. Seems to me that some strings are being pulled by some very powerful fingers.

http://community.nytimes.com/comments/www.nytimes.com/2011/07/02/nyregion/new-yorkers-and-french-await-latest-dominique-strauss-kahn-legal-turn.html?permid=29#comment29

Meanwhile, I am left with the memory of what a local football player declared on his Facebook page to be his "favorite quote":
"She can't say no if her mouth is taped shut."
(Quoted in "Abu Ghraib, Rumsfeld, and Athletes' Facebook Photos; What Do Abu Ghraib and Athletes' Facebooks Have in Common?" August 23, 2007, from Brian Morelli, "Alcohol Abundant on Players' Sites; Review Shows Questionable Material," Iowa City Press-Citizen, August 23, 2007, no longer available online.)

Of course, she is equally inhibited from saying no if she has passed out.

An Iowa football player "was accused of sexually assaulting a female UI swimmer while she was passed out in a dorm room on Oct. 14, 2007. [His] teammate . . . was charged with second- and third-degree sex abuse in the case, based on allegations the men worked together to assault the woman." Erin Jordan, "Former UI Football Player to Serve 7 Days for Assault," The Gazette, June 25, 2011, p. A3. What transpired during the year following October 2007 is collected in "University of Iowa Sexual Assault Controversy -- 2007-08," September 25, 2008.

Now, after numerous postponements, the cases have finally been concluded nearly four years later.

One player, charged with the felony of third-degree sex abuse (up to 10 years in prison and sex offender registry listing) ended up with seven days in the local jail for simple assault. The other took a plea deal, pleaded guilty to assault with intent to commit serious injury, and received no prison time; just a suspended sentence, probation, a fine and victim restitution.

This was Iowa's version of a high-profile sexual assault case. As Jordan reports, "The UI’s handling of the sex abuse case was criticized in an independent investigation ordered by the Iowa Board of Regents. The case resulted in the firing of two senior-level administrators and redrafting of UI policies for dealing with sexual assault allegations."

Of course, IMF directors and football players aren't the only ones who often end up "getting away with it." But the high profile cases are a teachable moment, or should be, for all of us.

Somehow, some way, someday, we are going to have to figure out a way for the legal system to make it possible for a victim of sexual assault to bring a legitimate accusation against her accused without being subjected to the second assault of the legal system itself -- as multiplied by the media's coverage -- and with a reasonable probability of something more than a suspended sentence or seven days in the county jail. Of course, the law must also protect those accused from any false accusations motivated by vindictiveness or an effort at blackmail. And hopefully, it will protect the privacy of all parties -- at least until the trial and appeals have concluded.

At a time when rape is being used as a military strategy by some countries' armies, and often seems to be treated less seriously by some of our prosecutors and judges than other forms of deliberate physical assault, we obviously still have a very, very long way to go before this problem is solved.

# # #

Sex, Jail, Baseball and Bush

October 23, 2008, 10:00 a.m.

The Day's News
Coach Ferentz going to court; 200-signature petition going to President Mason; UI going to/for Johnson County Jail; Tampa Bay Rays put lie to "you get what you pay for;" 1967 flood warning more evidence of officials' need for Internet research training; UI wants explanation of the part of "public" in "public records" it doesn't understand; Movie "W" sympathetic to Bush

UI Sexual Assault Case: Year Two

Last week marked the beginning of the second year of the ongoing consequences of an alleged sexual assault on October 14, 2007. And there's still no light indicating an end to this dark tunnel.

Today's news contains three, count 'em three, stories related to the case.

Political Science Professor Michael Lewis-Beck's petition, calling for the reinstatement of peremptorily-fired former UI General Council, Marc Mills, has grown to 200 signatures, and will be presented to President Sally Mason late this afternoon. There will, presumably, be follow up stories regarding that meeting. Brian Morelli, "Prof will deliver petition to Mason; Wants Marcus Mills reinstated," Iowa City Press-Citizen, October 23, 2008, p. A1.

The trial of the two athletes charged with the assault is scheduled for November 3 (when any media coverage of the case will tend to be overwhelmed by the presidential election the next day). But there are pre-trial hearings as well, and one is scheduled for today. The issue is whether statements made by an accused to the likes of Coach Ferentz, Fred Mims, and EOD (Equal Opportunity and Diversity) folks should be admissible in evidence or, as the accused's lawyer contends, are in essence "involuntary confessions" that should be excluded. The coach, and other UI administrators are expected to attend and testify. Lee Hermiston, "Ferentz expected to testify at UI Sex Abuse Hearing," Iowa City Press-Citizen, October 23, 2008, p. A1.

Finally, the Des Moines Register and others have been asking the UI, "Just what part of 'public' don't you understand?" -- as in "public records" that happen to relate to a form of "student records." One federal law says they have to report to the public the campus crime statistics. Another says they must protect student "privacy." Some say the answer is to just remove the student/s' names from documents. Others say that's still a problem. Lee Rood, "U of I wants clarification after request for records," Des Moines Register, October 22, 2008 [and Iowa City Press-Citizen, October 23, 2008, p. A6].

800 Pound Gorilla Goes Directly to Jail, Does Not Pass 'Go' or Collect $200

When biking up town I often go along Capitol Street. I've noticed that it's mostly a University building and the Johnson County Jail, along with acres and acres of automobiles, but never examined it closely. So the other day, thinking about the jail expansion, I biked through the parking lots instead of on the street.

I've not been a proponent of a new jail, though I recognize there is some good data to support the idea. (My preference is for alternatives to incarceration, and multi-county regional jails for overflow -- the former already being done and the latter rejected out of hand). But as I was biking behind the jail the answer was obvious: If we're going to expand the jail wouldn't the cheapest, most efficient and least disruptive place to put it be right where it is now? There's sure plenty of unused space back there.

I forgot about that experience until I read in the Press-Citizen shortly thereafter that our Sheriff had been thinking the same thing -- only to be frustrated by an intransigent, dog-in-the-manger University refusing to sell. Brian Morelli, "UI interested in county jail space; Sheriff: Property's value estimated at $5M," Iowa City Press-Citizen, October 21, 2008, p. A3.

That story, in turn, reminded me of the frustration the residents of some of Iowa City's old neighborhoods have had, watching the University destroy neighborhoods that could be real assets for the University as single-family homes, a walking distance from the campus (if not, in some cases, right across the street), that would be ideal in attracting new and visiting faculty to Iowa.

The University is, and acts like, the local community's "800-pound gorilla" ("Where does an 800-pound gorilla sleep?" "Anywhere it chooses.")

Nor is the problem limited to the state's universities. It's an issue involving state property needs generally. It has implications for Iowa communities' quality of life, for local property tax revenues, for flood control and flood plains.

It needs to be reviewed by the Legislature. Hopefully it will be. Meanwhile, given the University's contributions to the population of that jail (see stories above), you'd think it could be a little more cooperative and considerate in working with the institution's needs for expansion.

"You get what you pay for"? Not quite. Baseball and university presidents' salaries

How many times have you heard someone -- often a salesperson -- say, "Well, you get what you pay for"? The suggestion is both (a) you should always buy "the best" (even though, for a given task or general purpose, the "good" or "better" may be your "best buy"), and (b) in seeking "the best" the most reliable guide is price. The higher the price the higher the quality.

Over the near-70 years I've been aware of the Consumers Union's (CU) Consumer Reports it has been putting the lie to that canard. If a purchase is important to you, a brief review of CU's hard copy and online independent (no advertising) research can ensure both (a) that what you end up buying will be of higher quality and come closer to your precise needs and wants, and (b) often significant savings.

In short, "you get what you take the time to research and comparison price."

This year we have yet another example from the world of baseball.

I'm not about to predict who will win the World Series. For my purposes at the moment it makes no difference. My point is that this year's American League pennant winner, now playing the Phillies in the World Series, is the Tampa Bay Rays.

So what's the significance of that? Simply that the Rays, with a total player payroll of $43 million, are second only to the Florida Marlins for the lowest salaries of any of the 30 teams in the major leagues. (The Phillies' payroll is $98 million; the Yankees, $209 million.) Art Spander, "Philadelphia Phillies go one game up against the Tampa Bay Rays in the World Series; So many subplots, so much artifice. So many cowbells and, honest, cownose rays swimming in a 10,000 gallon tank beyond the right field fence," [London] Telegraph, October 23, 2008, updated 11:06 a.m. (GMT).

"You get what you pay for?" Not if you're goal is to play in the World Series.

It's a story worth remembering next time we buy the "you get what you pay for" line when hiring university administrators (in the last couple weeks we hired another one in the $500,000-$1,000,000 range (salary, plus benefits, expenses, deferred compensation, etc.).

Iowa City has a relatively low cost of living compared with New York, San Francisco, or any of the other large urban areas with major universities. This is true for two reasons. (1) Some costs are lower: buying a house, going to a restaurant, or the theater. (2) Other costs can be avoided entirely: long commutes to work, parking costs, expensive (and expansive) wardrobes of clothes (see, e.g., Governor Sarah Palin's $150,000 campaign expense for two-months' clothes), or country club memberships.

Is there really no one in Eastern Iowa, the rest of Iowa, the rest of the United States or the world, who would be equivalent in experience, intelligence, social skills, judgment, and administrative ability to that of the administrators we now have, who would be willing to accept the prestige of such positions for a "living wage" of say, $150,000?

Just something to think about. Especially when thinking about the amount of money the CEOs who brought us this economic collapse have already taken for themselves.

[Literalists, statisticians, and baseball professionals should be sure to check out Professor Tung Yin's "Baseball and University Salaries," October 23, 2008, for a much more detailed analysis of the "you DO get what you pay for" theory, and a rebuttal of this portion of today's blog entry.]

1967 Report: "The 2008 Flood is Coming! The 2008 Flood is Coming!"

It turns out that Cedar Rapids officials were warned by the Corps of Engineers in 1967 that floods the seriousness of the one we all suffered this year -- or worse -- were well within the range of possibility.

The Report was referred to in a meeting of the Rebuild Iowa Advisory Commission's Task Force on Flood Plain Management and Hazard Mitigation. Said member Rob Hogg, state Senator from Cedar Rapids, "I've worked on these issues, and I was just shocked that there was a study that I never knew about." Rob Boshart, "Corps Warned of Risk in 1967; Engineers Predicted 'Perfect Storm,'" The Gazette, October 23, 2008, p. A1.

I don't mean to be critical of Senator Hogg, or others who expressed shock at the discovery, but it does illustrate one of my concerns.

When I used to serve on the local school board I would observe "with some 15,000 local school districts in America, it is highly unlikely that there is any challenge we confront that has not been experienced elsewhere, studied, resolved, written up and made available on the Internet."

I'm not sure that's true of this 1967 Report (though there would have been other ways to find it).

Of course it's good to talk things through and share personal anecdotes, opinions and intuition. But it is so much more efficient and productive to, first, do some basic research to find "best practices" from others (without the need to pay hefty "consultants'" fees).

I have always been amazed at the public officials who will willingly take two or four days from work to attend a conference, at considerable public expense, and rationalize the time and expense by citing how much they learn there. And yet they won't invest a half hour or less looking for the answers they need from the billions of Web sites, government and academic reports available to them for free -- and often Google-accessible in far less than a minute.

Movie "W" Sympathetic to Bush

Saw "W" last evening. It's sure not a political propaganda film that George Bush would want to use if he were running for re-election. But neither is it the kind of Saturday-Night-Live-style comic caricature we've seen so much of regarding our president. It won't alter by much your present evaluation of the kind of president he's been. But it will give you some additional sad and sympathetic understanding of why.

# # #

Personal Note and Update

October 22, 2008, 7:25 a.m.

Personal Note and Update
For the past couple weeks, in addition to my regular teaching at the University of Iowa College of Law, I've been involved with preparation for and presentation at the "Carterfone and Open Access in the Digital Era" conference put on by the High Technology Law Institute of the Santa Clara University School of Law in California.

It's amazing how well the world was able to keep on turning without my daily blog entries during that time. Also rewarding is the extent to which the 500-plus entries in this blog have apparently now become a reference source for users with or without daily additions; the daily hits remained pretty solid.

And at least some progress can be reported with regard to a number of the issues we track that is at least consistent with this blog's recommendations.

Here, then, are mostly mini-entry updates about a range of subjects: Global economic collapse; Afghanistan/Pakistan; Bars, Booze and Binge Drinking; Corporate Welfare; Sexual Assaults; Carterfone; and the Dysfunctional Airline Industry.

Global economic collapse. Since first making the suggestions that the first Paulson plan (approved by Congress) was flawed, and that the taxpayers should be getting an equity interest for their money (following the Swedish example from 1992), both the U.S. and Brits have moved in that direction. Similarly, more attention has been given to helping mortgage-struggling homeowners rather than just greedy bankers, holding down the personal compensation paid to the CEOs of bailed banks, the need to get a jobs program ready to roll out (which could do double duty in the repair and building of the long-ignored infrastructure featured on PBS last evening), the need for more prosecutions of those responsible for our current plight, some long term fixes, and an awareness that we're heading into an unprecedented and unknowable global recession/depression involving far more than the financial sector.

No; I suffer no illusion that any of these movements have been affected in the slightest by anything I wrote. But it is always reassuring to see one's early instincts and writings sort of confirmed by subsequent events, or the comments of those who really do know what they're talking about.

Afghanistan/Pakistan. Similarly, the evidence continues to mount, as I have earlier written, that there is no "military solution" to the problems we confront in Afghanistan/Pakistan (or Iraq for that matter). Indeed, the presence of our troops is in many ways counter productive -- angering local civilians, turning off both "hearts and minds," destroying rather than building a sustainable local economy, and contributing to the recruitment of terrorists. Most recently, yesterday, over the protests of the Kabul government, our continued bombing resulted in the killing of nine more Afghans -- this time soldiers fighting alongside Americans. Meanwhile, our relations with Pakistan, and our military activities there, have contributed to the disintegration of Pakistan's government and economy -- to the point that Pakistan (a nation with nuclear weapons) is probably now, potentially, the single most dangerous country in the world so far as America's national security is concerned. Not because it's leadership is "anti-American," but because it is a country where joblessness and chaos means starvation, and eventually uncontrollable revolution.

Bars, Booze and Binge Drinking. The City Council is taking another look at the social and economic costs of alcohol abuse that its policies, and those of the University, have permitted to increase over the years. It remains to be seen how effective any ultimate proposals may be -- the Council refuses to even consider a proposal that those who cannot legally buy alcohol should be required to leave the bars at 10 p.m. (erroneously called "21-only") -- but I'd rather the Council at least be addressing the problems than continue the "see-no-evil-hear-no-evil" approach.

Corporate Welfare. Surprise, surprise, the Sheraton has just been given -- for free, so far as I can gather from the papers -- a 13-foot swath of formerly public street and land. This was described as a "license." That sounds an awful lot like Senator Ted Stevens' effort to draw a distinction between a "loan" and a "gift" of property (e.g., a $2500 chair, a generator) he received, and didn't report on the ethics forms. Iowa City's taxpayers, who once owned Dubuque Street, had retained a 25-foot swath of it under the Sheraton for a public walkway. The City Council has just told the hotel it can capture 13 feet of it to expand its lobby. And while I'm on this subject, what's the deal about turning over public sidewalks to restaurants to expand their seating capacity? Do they pay to use that public property, or is that more of the Council's generosity with our land?

Sexual Assaults. The Regents and their universities are moving ahead with the effort to come up with new organizational arrangements and procedures for handling sexual assaults. It remains to be seen what they'll come up with -- beyond the Stolar Report recommendations. One of the toughest issues involves respect for the alleged victim's wishes. If she ends up deciding not to file a complaint with the police the university (especially if athletes are involved as alleged perpetrators) is open to speculation that it played a role in encouraging her to do so. If they don't report it on their own they can be charged with a "cover up." If they do report it on their own they can be charged with interfering with the alleged victim's rights of privacy.

Carterfone. As an FCC commissioner, most of the some 400 opinions I personally wrote were dissents or concurrences, explaining why I thought some or all of what my fellow commissioners were doing was wrong. One of the most significant opinions I wrote, however, was a unanimous opinion for the majority -- much more far reaching in its effect than anyone could have known at the time, myself included. Sufficiently so that a conference was held at Santa Clara University last Friday to celebrate its 40th birthday. Sometime early next year there will be a book-length collection of the papers presented, so I can't summarize all of the issues here in a blog paragraph -- even those addressed in my own keynote address.

It was decided at a time when AT&T had as close to a complete monopoly as any company in America. It both manufactured and owned all the telephone handsets, the cable, the switching stations, the long distance lines -- all of it. And it had an FCC tariff to insure it stayed that way. Nothing could be attached to the telephone network that was not AT&T's -- up to and including even a plastic cover on a telephone book, also called a "foreign attachment."

Tom Carter, a Texas cattle rancher, wanted to be able to take and place phone calls while out riding fences. He invented a device that enabled him to do it. The Carterphone could receive radio communication from his transceiver, hold a telephone handset, and switch back and forth as the parties spoke.

AT&T fought it as a violation of its tariff. The FCC, through the opinion I wrote, found the tariff illegal. It took another 10 years to implement the decision (with "Part 68" regulations), but ultimately Americans could buy telephones in drug stores, and almost unnoticed began using "modems" resembling Tom Carter's device, with "acoustic cups" for a telephone handset, to connect their early desktop computers to what became "the Internet."

Among the issues we confront today, some 40 years later, are whether the principles (or even precedent) of the Carterfone decision are relevant to resolving some of the bottlenecks and impediments the major cell phone carriers are imposing on their customers, and the suppliers of new devices (that sometimes take the form of computer "software" rather than "hardware"), in an age when cell phone ("wireless") carriers are rapidly becoming the primary on ramps to the Internet.

You'll have to wait for the book (or movie) to get the whole story, but that will give you some idea of what I've been up to while away from the blog.

Dysfunctional airline industry. Meanwhile, getting to California and back was just a further reminder of how dysfunctional our airline industry has become. This is not a new observation for me, nor I suspect for you. So much so that when Mary and I were going to Denver last August we opted for the train.

What a treat! We actually had a roomette, but I'm not sure I'd bother next time. The coach seats on a train are better than the first class seats on a plane. They go back further, and with foot rests make sleeping possible. They and tray tables don't have to be "put in their full upright position" every time you enter a station. Large picture windows in every car -- not to mention the lovely "observation cars" -- let you see (rather than merely imagine) what the countryside looks like. You can walk around whenever you please (the full length of the train if you wish), rather than be buckled in. Get food whenever you want at reasonable prices. Read, write on your laptop, make cell phone calls, nap.

Airline travel never was a big thrill for me, but I never experienced any fear of flying, and found it generally pleasant enough during the latter half of the Twentieth Century. Going to Japan with some regularity, it was often possible to find six empty seats where you could stretch out. On domestic flights there were enough flight attendants on board to bring you food and drink and be otherwise pleasant and attentive without being stressed. The seats, and space between rows, were wider and more comfortable -- with often an empty seat beside you where you could spread out papers and such. My memory is the seats went back further, too. Flights were usually on time; baggage usually came through safely. There were few delays for last minute "maintenance" or otherwise cancelled flights. There was little concern about hijacking or terrorists. A flight was a time to relax, away from phones and other interruptions. On the rare occasions when a canceled flight required an overnight stay, the airlines would pay for your hotel and meals until you could leave the next day.

There was a time when I represented American Airlines as a lawyer. And I later became almost a United Airlines groupie -- buying a lifetime Red Carpet Club membership (during a very narrow window of time when it was an incredible bargain -- never then imagining that my own lifetime might end up lasting longer than that of United), carrying a United Visa card, piling up my Mileage Plus miles, and usually travelling often enough to build a nearly complete collection of each month's issue of Hemispheres magazine. I even bought a little stock (which rose rapidly in value and then, of course, became virtually worthless).

What a difference "deregulation" and a few bankruptcies can make.

Air travel never did make a lot of sense as a transportation system. (Can you imagine how Bob Newhart might have played the banker being pitched by the world's first airline for a loan?)

o Moving a multi-ton container off the Earth, into the atmosphere, takes an enormous amount of fuel -- not to mention the harm done to the ozone layer and greenhouse effect from the exhaust.

o Any transportation system that depends on favorable weather conditions is inherently unreliable -- especially when its marketed "advantage" is the "speed" represented by an on-time arrival that can so easily be affected by snow, sleet, ice storms, fog, dangerous winds, and other conditions that are mere inconveniences for travel by train, bus or automobile.

o Aside from the fact that "your seat cushion becomes a flotation device" when your plane falls into the drink, the container does not "become a boat" when that happens, nor is there any other "fail safe" option (as with a car simply going into a ditch) if the system fails.

o Part of the reason I pushed containerization when Maritime Administrator is that I early on discovered 90% of the cost of moving cargo was incurred within 10 miles of the port; the trip across the Pacific was virtually free. So it is with air travel. You need to allow a margin of error for (a) the time it takes to pack the car and leave the drive (or wait for the shuttle) and get within the vicinity of the airport (allowing for the possibility of traffic congestion, accidents, or a train parked on a railroad crossing), (b) find a place to park and drag your bag to the bag check, (c) the line at the check-in counter which can take anything between 2 and 45 minutes, (d) ditto for the security check that requires you to remove all metal along with your shoes and laptop, and then dress and repack, and (e) the walk to the gate. (f) This is on the assumption there is actually a plane at the gate. For any one of a long list of reasons it may not yet have arrived. Or, if it's arrived, there may not be a crew. (g) Then there's the sitting on the tarmac waiting for clearance to take off. (h) The delay, and possible cancellation, because of maintenance needs. (i) Any possible delays during the flight due to weather or other factors, and (j) congestion at the destination airport, or (k) the fact there is no gate to park at, or jet walkway at the gate. At which point there's a similar routine regarding (l) your connecting flight, or if your destination, (m) waiting for your bag (which may not have arrived), (n) getting ground transportation, and (o) the time of the trip to your ultimate destination. Not to mention the high prices for tickets, and the nickle-and-dime extra charges for checking a bag ($15), or avoiding starvation.

o On my flight to California there were four legs: a flight from the Eastern Iowa Airport (CID) to a regional hub, the flight to San Jose, the flight from San Jose to a regional hub, and the flight back to CID. On three of those four flights there were cancellations or delays (in one case the necessity of transferring to another airline) because of the last-minute discovery of necessary repairs. One involved a defective switch that controls the part of the plane that provides the lift necessary to get it off the runway. Another involved a defective brake -- necessary to keep the plane from going off the runway. And the third was something I've never encountered before: (a) the need to remove fuel because there was too much on board and (b) the necessity to balance up the fuel in the tanks because it was so much out of balance that the plane couldn't fly. Now I ask you, could none of these problems have been anticipated or discovered prior to the moment of take off?

o While I'm on this rant, here's one more. If you buy 100 head of cattle and only get 87, or a dozen bagels and there are only 10 in the bag, you -- and the person who sold them to you -- expect that you will ask for, and receive, either a refund or the additional goods. What are you buying with an airline ticket? Speed of travel; arrival at a fixed time. As a result of the maintenance work, and necessary change of airlines, I missed an event in California I was scheduled to attend -- and for which I had allowed plenty of extra time in the travel schedule. When you do not arrive at your destination at the scheduled time -- for whatever reason -- you are not getting what you purchased. There is a "loss" associated with that delay -- for everyone on the plane. We can argue about how we should go about calculating the economic value of that loss, but that there has been a loss is clear. The question is, how should it fall; who should bear it?

If it is important to you to have something constructed by a particular time you can build into a construction contract provision for a bonus if it is finished on time, or a penalty if it is not. But we don't have such a provision in our contracts with the airlines -- nor do we have the bargaining power to negotiate for it. So the entire loss falls on us, the customers, those who have the least responsibility for the delay.

In sum: The airlines have become dysfunctional. Just one more reason why, while we're about the business of rebuilding our disintegrating early-Twentieth Century infrastructure we need to give really serious consideration, and funding, to rebuilding our passenger rail transportation system.

# # #

Cleaning Up After the Party

September 26, 2008, 8:30 a.m., 2:30 p.m. (links to today's stories); September 27, 2008, 6:30 a.m. (links to additional stories)

Related:
"Which Would be Worse?" September 25, 2008
"Scapegoat Bites Back," September 24, 2008
"Got Questions?" September 23, 2008
"Rational Responses to Stolar and Global Finance" (includes "The Case for Mills and Jones"), September 20, 2008
"Extra: Stolar Report," September 18, 19, 2008
And, of course, the monster collection of material in Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present

The Party's Over; Cleaning Up Begins
[Links to today's stories at bottom of blog entry.

SPECIAL: Link to Mills Response to Stolar Report (note that the Press-Citizen has a bad link), but this one works.]

The party's over. They're shutting off the lights. The media's off in search of the next big story. The University community has shifted its focus to the Homecoming parade tonight, and another aspect of the Iowa football program: the Northwestern football game tomorrow at 11:00. (As Kembrew McLeod reported hearing "two drunk guys in downtown Iowa City joking that they didn't care how many women the football team rapes, as long as it keeps winning.")

But after that game the neighborhoods surrounding the stadium will once again be filled with flattened beer cans, broken glass, plastic cups, cardboard cases emptied of their of beer cans, and tipped over empty trash cans along with a rich variety of unidentifiable trash. But within a day or two or three the streets will have been swept and the homeowners will have crawled under their bushes and hedges to remove what's been thrown under them by fans.

Cleaning up after the football program participants' alleged rapes is proving to take a little more time.

The Regents have demonstrated their verbal facility in their review of President Sally Mason, on the one hand with a Bush-like praise of the great job she has done ("You're doing a heck of a job, Brownie"), while on the other hand refusing to raise her base pay because of her responsibility for the mess that was made of last October's alleged sexual assault by two football players.

(Meanwhile, both of those players are off playing football elsewhere -- interrupted only by the occasional need to return to Iowa City for a Johnson County court proceeding. And a three-judge panel of the Iowa Supreme Court has voted two-to-one for Pierre Pierce, the basketball player who starred in the last really big sexual-assault-by-Iowa-athlete saga (the new organizational and procedural clean-up from which was supposed to prevent the administrative chaos we've recently witnessed from ever happening again). Notwithstanding his probationary status for subsequent crimes as well, they decided it would be all right for him to leave the state, indeed the country, to play basketball in France. I've just never understood where the public could get the idea that athletes are treated differently from everyone else.)

So now that President Mason is securely back in Jessup Hall, what's left to clean up after the Regents' party?

o The Regents have yet to respond to the media's public records request for the ten-page document they received from former UI General Counsel Marc Mills, protesting his peremptory firing.

o Mills now has a lawyer of his own, but we've yet to hear what he's prepared to do legally.

o Vice President Phil Jones, also peremptorily fired, also has a lawyer, whose four-page letter and attachments we've seen (linked from yesterday's blog entry), and who seems to be prepared to pursue a wrongful dismissal law suit.

o Sheldon Steinbach, a Washington, D.C., lawyer and former general counsel for the American Council on Education, thinks they both have solid wrongful discharge cases.

o The criminal case against the two football players is going through lawyers' motions, and getting postponed, but is still very much ongoing.

o We've heard nothing from the alleged victim or her family since this whole thing blew up with regard to whether they are looking to sue the University (or may already be negotiating a "settlement").

o The Regents never have come up with "ends policies," or goals -- some metric, measurable way of answering "How would we know if she is 'successful'?" -- as promised, before handing out more added bonuses to President Mason as "incentive packages." They've now increased the incentive from $50,000 to $80,000 and reiterated that promise, but it's an exercise well worth the media and public following. (Obviously, counting the number of times she makes statements that "I expect" or "I will not tolerate" are not the kind of metrics I have in mind.)

o Athletes aren't the only students who engage in unacceptable, violent behavior. But however much praise is heaped on the UI Athletic Department by the Regents, the Stolar Partnership, and President Mason, the fact remains that at least from a public relations perspective, it's the criminal behavior of high profile athletes that gets the attention of the media, public, and public officials. What the football and basketball programs are willing to do in controlling that behavior, starting with the vetting of the quality of the recruits brought here in the first place, also deserves watching.

o Credit President Mason with mentioning yesterday at the Regents meeting the role of alcohol in well over 90% of sexual assaults. (Alcohol is involved in roughly 50%, give or take, of all crimes.) Actually accomplishing a reduction in the seriousness, number of students, and amount of binge drinking -- and its consequences -- should remain near the top of the City's and University's agenda. Given that, as the saying goes, "you get what you measure," figuring out a way to measure progress on this one should be the starting point.

o President Mason has put in place immediately a new set of interim procedures for handling sexual assaults. They need to be communicated, assessed, tweaked, and covered by the media.

o The Regents read off a list of what they want in a set of new policies, consistent across all three Regents' universities. That study, meetings, drafting, and reviewing process will be beginning soon.

o There will be a search under way for permanent replacements for Mills and Jones -- something President Mason said yesterday she'd like to have concluded this year.

Moral: Some parties take longer to clean up after than others.

What else is there? Put in a comment to this blog entry and tell me what I've left out.

Links to Today's Stories

Daily Iowan

Bryce Bauer, "Mills: Inaccuracies in Stolar Partnership Report," The Daily Iowan, September 26, 2008.

Amanda McClure, "Mason Apologizes to Regents," The Daily Iowan, September 26, 2008, p. A1.

Lauren Sieben, "Regent: No 2nd Thoughts," The Daily Iowan, September 26, 2008, p. A1 ("Former UI Provost Michael Hogan, who was denied the UI presidency in 2006, this week turned down a $100,000 bonus for exemplary service as the president of the University of Connecticut.").

Amanda McClure, "No Raise for Mason," The Daily Iowan, September 26, 2008, p. A1.

Des Moines Register

Ben Fornell, "U of I to control student 'ghosting' rooms," Des Moines Register, September 28, 2008 ("Ghosting is hard to track on the campuses of Iowa's three public universities, but it became an issue in an alleged assault case at the U of I last fall. A Hillcrest Hall room involved in the alleged sex assault was unoccupied. It had been assigned to two Hawkeye football players, but they were living off campus.").

Staff, "Mills Insists He Did Not Botch Assault Case," Des Moines Register, September 26, 2008; William Petroski, "Fired lawyer offers rebuttal," Des Moines Register, September 27, 2008.

Editorial, "Lesson for Regents: Opt for Openness," Des Moines Register, September 26, 2008 ("Both the regents and Mason must rebuild Iowans' confidence in their management of the university. Secrecy won't help.").

Editorial, "Policy Change a Good Step, But Follow-Through is Key," Des Moines Register, September 26, 2008.

Lee Rood, "Mason's Salary Frozen in Wake of Scandal," Des Moines Register, September 26, 2008.

Video of Board of Regents Meeting, September 25, 2008 Des Moines Register, September 26, 2008.

Video of Press Conference Following Board of Regents Meeting, September 25, 2008 Des Moines Register, September 26, 2008.

The Gazette

Diane Heldt, "Mason: School failed student who sought help; Regents support UI president but deny pay increase," The Gazette, September 26, 2008, p. A1; online as, "Regents Express Confidence in Mason After Apology, Reform Vow," Gazette Online, September 25, 2008, 9:56 p.m.

Gregg Hennigan, "Iowa's Mills responds to assault report," Gazette Online, Updated September 26. 2008 6:56 p.m.; hardcopy as "UI's Mills Responds to Assault Report," The Gazette, September 27, 2008, p. B1.

Jennifer Hemmingsen, "Mason Speech to Regents Leaves Lingering Skepticism," The Gazette, September 27, 2008, p. B1 ("[W]e learned much of the blame lay with those policy and procedure changes that were supposed to prevent another Pierce fiasco. . . . This time, [UI President Sally] Mason told regents on Thursday, the UI will get expert help . . .. In the interim, she’s put an end to the informal reporting process, named a single point of contact for people reporting sexual assaults and is requiring they be paired with a trained advocate. She says she has zero tolerance for sexual assault and misconduct and will work to create a respectful campus community. Sounds good, but I’ve been talking with fellow alums over the past couple of days and our consensus is this: We’ll believe it when we see it. We thought the problem was fixed last time. We were duped. . . . I’m keeping my eyes on what happens now. Show me, Sally.").

Iowa City Press-Citizen

Editorial, "More Questions Before UI and Regents Move On," Iowa City Press-Citizen, September 27, 2008, p. 16A.

Thomas Walz, "University Problems Aren't the Fault of Any One Person," Iowa City Press-Citizen, September 27, 2008, p. 17A.

David Roston, "Pinpointing Mills' conflict of interest," Iowa City Press-Citizen, September 27, 2008, p. 17A.

Lee Hermiston, "Mason implements changes; Appoints sexual assault response coordinator," Iowa City Press-Citizen, September 27, 2008, p. 5A ("University of Iowa president Sally Mason put into effect Friday several policy changes in the wake of a report criticizing the university's policies and procedures in responding to allegations of sexual assault.").

Brian Morelli, "Mills: I Wasn't Leading Investigation," Iowa City Press-Citizen, September 26, 2008, including a link to Mills' Response to Stolar Report; and Brian Morelli, "Mills Says He Didn't Manage Investigation," Iowa City Press-Citizen, September 27, 2008, p. 3A.

Brian Morelli, "Mason apologizes; UI president outlines interim abuse policies," Iowa City Press-Citizen, September 26, 2008, p. A1

Brian Morelli, "Regents Say Denying Raise Sends Message," Iowa City Press-Citizen, September 26, 2008, p. A1.

Michael O'Hara, "UI Fortunate to Have Sally Mason Leading the Way," Iowa City Press-Citizen, September 26, 2008 (O'Hara is President, UI Faculty Senate; this op ed column is essentially a reply to Kembrew McLeod, "Recent Events at UI Embarrassing, Disgusting," Iowa City Press-Citizen, September 22, 2008).

Brian Morelli, "Regents Stick by Athletics, Give No Raise to Mason," Iowa City Press-Citizen, September 25, 2008.

"Mason's Remarks to the Regents," Iowa City Press-Citizen, September 25, 2008 (advance speech text as released by the University).

"Regent President Statement on Mason, Athletics," Iowa City Press-Citizen, September 25, 2008.

"Mason Sends E-mail to UI Employees," Iowa City Press-Citizen, September 25, 2008.

Lee Hermiston, "Hearing for Everson, Satterfield Pushed Back," Iowa City Press-Citizen, September 25, 2008.

Lee Hermiston, "Satterfield Ordered to Appear, Spies Wants Separate Trials," Iowa City Press-Citizen, September 23, 2008.

Other

"Mason announces termination of employment for Jones, Mills," University of Iowa News Release, Sept. 23, 2008.

# # #

Scapegoat Bites Back

September 24, 2008, 9:00 a.m.

The Lawyer Did It
The first recorded use of a "scapegoat" of which I am aware was 4500 years ago. Whatever the actual facts may be, clearly it is an ancient and -- in modern times -- sometimes dishonorable ritual. [Picture credit: William Holman Hunt, 1854; Wikipedia.]

Is it being played out once again right here in River City?

UI President Sally Mason has responded to the Stolar Report of the University's mishandling of an alleged sexual assault last October 14 ("a perfect storm," the firm's lead investigator put it) by firing the UI's General Counsel Mark Mills (and also UI Vice President Phil Jones). She first checked with the Regents, who indicated they supported her action. The matter is to be reviewed by Regents tomorrow when she will presumably apologize, and they will, presumably, tell her to "go forth and sin no more" -- while at least maintaining (if not increasing) her $500,000-plus salary and benefits.

Before any of this happened I wrote "The Case for Mills and Jones" in Nicholas Johnson, "Rational Responses to Stolar and Global Finance," September 20, 2008. (The largest collection of documents, news coverage, commentary and links regarding all this remains the Web site, Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present. Sometime later today, hopefully, all of the enormous additional material available this morning will be commented upon, and linked to, from that Web site.)

In "The Case for Mills and Jones" I didn't attempt to defend everything the Stolar Report said they did (and didn't) do. But I noted five categories of reasons why their peremptory dismissals would not be appropriate -- never realizing last Saturday when I wrote it that they would be gone by yesterday (Tuesday). I mentioned, among other things, that because so many people were involved that it would be unfair to single them out; that if they were to be fired their overall performance needed to be evaluated in a routine and calm way (as the Regents are doing with President Mason); that "the buck stops," normally, at the CEO/presidential level, not the vice-presidential level; and that focusing on them, making it look like the problem was simply the consequence of the behavior of two individuals, diverts attention from the football culture of the campus and the need for organizational restructuring (as recommended by Stolar).

Finally, I noted that we had not yet really heard in full from Mills and Jones. We didn't know what the "back story" might prove to be.

We still don't know.

But we sure know a lot more than we knew yesterday afternoon.

I'll reproduce excerpts from Brian Morelli's story, below, and then provide some commentary of my own.

University of Iowa President Sally Mason was aware of how an alleged sexual assault investigation was being handled, a former UI executive said.

Marcus Mills said, "Yes, absolutely," when asked Tuesday if Mason knew what was happening in the investigation. . . .

Mills said he and Mason initially discussed student privacy concerns regarding the letters, but ultimately that did not preclude them releasing the letters to the regents.

The letters were not turned over because the regents didn't ask for documents during its investigation and because "we had the perception that whoever sent the letter, the family, did not want it to go to the regents and did not want it to be made public," Mills said.

Mills said he and Mason received a letter from UI public safety director Chuck Green, which Mills said he took to indicate Mason was aware of the family's concern about the letters becoming public. Mills declined to comment further on this.

Mills rejected his portrayal in the report as having the lead role in UI's investigation of an alleged sexual assault that involved two former UI football players Oct. 14, 2007, in Hillcrest Residence Hall.

"I didn't feel that I was overseeing the investigation. There wasn't an investigation in that sense. Different departments were heading up different aspects of the investigation," Mills said.

Mills also said Stolar failed to ask for his version of certain events and omitted parts of his testimony from their report, such as his side of conversations with the alleged victim's father. Mills also said UI's actions were affected by county attorney subpoenas, the criminal case against the former UI football players and a lawsuit filed by the Iowa City Press-Citizen.

"I think I handled this to the best of my ability with integrity under the circumstances," Mills said.

Brian Morelli, "Mills says Mason knew what was happening," Iowa City Press-Citizen, September 24, 2008, p. A1.

Among the documents I make available in full text from Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present is Thomas Evans, "REPORT ON THE UNIVERSITY OF IOWA’S COMPLIANCE WITH POLICY AND PROCEDURES WHILE INVESTIGATING A SEXUAL ASSAULT COMPLAINT," Iowa Board of Regents, Agenda Item 17, June 11-12, 2008 (a pdf file).

This is the report of the Regents' first investigation.

Why is that relevant?

Because it provides the foundation for judging the credibility of Marc Mills' assertions.

Consider the Board of Regents' characterization of their charge to Tom Evans regarding their own first investigation. As its "Executive Summary" puts it:

"On November 16, 2007, the Board of Regents requested the Board Office to review the University of Iowa’s compliance with University and Board policies and procedures and applicable statutes while investigating an alleged sexual assault that occurred on campus on October 14, 2007. The Board further requested the Board Office to examine whether current policies and procedures are adequate." (emphasis supplied)

And what was Evans' conclusion? "After a comprehensive review of the facts of the alleged incident and each of the applicable University policies, it is clear that University officials fully complied with internal procedural requirements."

Given this mission, and conclusion -- consistent with President Mason's assurances at the time that all procedures had been followed -- it becomes relevant to ask: Were any documents necessary to Evans' investigation? Were any documents asked for? If not -- especially if there was reason to believe that the alleged victim's family definitely did not want the letter/s made public at that time -- does the University President's, and General Counsel's, and others', failure to gratuitously offer up hundreds and hundreds of documents -- including those the family wanted to be kept confidential -- warrant the firing of the General Counsel?

I may have missed something (literally; I may have) but I can't recall off the top of my head anything in the Stolar Report of events -- of which the lead investigator said "everything that could have gone wrong did" -- that any one of those things "that could have gone wrong" included a failure to comply with internal procedures.

If President Mason thought there were none, and Evans found none, and Stolar mentioned none (after examining all those documents the University did not gratuitously offer up to Evans), and if Stolar found there was no effort at a "cover-up," it seems a little disingenuous to unceremoniously fire Marc Mills on the grounds, in part, that he failed to offer up the mothers' letter/s.

Moreover, if Mills' account is correct (and of course I'm not saying it is; how could I know?), it sounds like President Mason was more intimately involved in the decision not to turn over documents (including the letter/s) than she has yet let on. She earlier referred to a rationale that the material was covered by a federal law protecting student privacy. Mills is now saying they discussed, but rejected, that interpretation, and decided (jointly?) not to turn over the letter/s and other documents for other reasons. As Morelli reports, "The letters were not turned over because the regents didn't ask for documents during its investigation and because 'we had the perception that whoever sent the letter, the family, did not want it to go to the regents and did not want it to be made public,' Mills said."

Whatever President Mason has done with regard to Mills dismissal, and whatever the Regents may do about it tomorrow, I do think it is a little premature for any fair, impartial and judicious member of the public to be volunteering time and talent building the gallows for Marc Mills.

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Rational Responses to Stolar and Global Finance

September 20, 2008, 9:00, 11:30 a.m.

FromDC2Iowa.blogspot.com
Currently Most Popular Blog Entries
"University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present (incorporating and updating original blog entry, "UI Sexual Assault Update," July 19-August 9).
"Extra: Stolar Report," September 18 and 19, 2008.
"How Much Do You Owe the Chinese?" September 8, 2008.
"Police Accidental Shootings -- Of Themselves," May 9, 2008.
"Growing Iowa's Economy the Right Way," April 27, 2008.
"Alcohol Update," September 6, 2008.
"Violence at City and West High," December 15, 2007.
"Governor Sarah Palin," September 4, 2008.
"Greenbelts for Grandchildren," February 15 and 20, 2008.
"More Awards, Understanding and Survival Skills," September 16, 2008.

And see, Database Index of 500-plus blog entries

Stolar Follow-Up and the Case for Mills and Jones
As always, the best single source for current and background materials, documents, and links to newspaper coverage and more is to be found at "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present (incorporating and updating original blog entry, "UI Sexual Assault Update," July 19-August 9) -- to no one's surprise the most popular site here yesterday. Some eight new newspaper articles and editorials have been added there this morning. (And see that source for summaries of, and links to, the editorials and stories referred to below.)

"'The Case for Mills and Jones'?!" you exclaim.

Well, yes and no.

No, I'm not defending the behavior of either as presented, and criticized, in the Stolar Report. But I did get your attention, didn't I? And I don't think peremptory firings are appropriate -- for the reasons set forth below.

Normally I find myself in agreement with much that appears on the Register's editorial page from its editorial board and columnists. But this morning they went to bat twice and struck out both times in my opinion when they suggest that Mills and Jones should be fired and that it is the Regents who should be drafting new procedures.

A desire for self-preservation is only human. But it often interferes with our ability to understand systemic institutional failures when the most popular response is to scapegoat someone -- other than oneself, of course.

o FEMA's Michael Brown was not the sole reason for the institutional disaster that followed the Katrina disaster.

o Ralph Nader was not the sole (or even primary) reason for the failure of the Democratic Party's presidential campaigns in 2000 and 2004.

o And Marc Mills and Phil Jones were not the sole reason for the University of Iowa's disorganized and chaotic response to the alleged sexual assault of last October 14.


The Gazette's morning editorial acknowledged "[the] university’s mistakes, miscommunication and inconsistent actions [and the] lack of understanding and leadership [that] made a terrible situation worse [as] too many university leaders did too little to make sure the [situation] was handled humanely and efficiently." Editorial, "Inquiry Must Lead to Swift Changes," The Gazette, September 20, 2008, p. A4.

And, as he so often does, the Press-Citizen's classy editorial cartoonist, Bob Patton, captures it with a stroke of his pen this morning under his heading of, "The Heat is On." [Credit: Bob Patton and the Iowa City Press-Citizen, September 20, 2008, p. A21.]

The drawing shows the "Stolar Partnership" "Investigation into U.I. Handling of Sex Assault Case" as a magnifying glass focusing the heat -- like a small boy using a magnifying glass to cremate ants on a summer's day -- on Mills and Jones, while UI President "Mason" and "Rest of UI Administration" stand on the shady sidelines.

So, what's wrong with focusing on Mills and Jones?

"Let me count the ways."

1. It's unfair. As The Gazette acknowledges, and Patton portrays, there's plenty of blame to go around to all of those "too many university leaders."

2. Orderly and balanced personnel review. The Regents set the example: President Mason's performance review was bifurcated, as the Regents first considered (on September 17) her accomplishments and failings separate and apart from her handling of this sexual assault case, and will subsequently consider the latter.

Every employee's performance can be reviewed periodically. And when Mills and Jones next come up for review they should be entitled to no less consideration than President Mason: how they performed with regard to this case (however seriously deficient it may, ultimately, be found to be) should be considered within the context of their overall performance.

Peremptory dismissals -- the petulant, retaliatory, scapegoating firing of employees -- are as counterproductive as they are inappropriate and unfair.

3. The back story. Neither Marc Mills nor Phil Jones have had an opportunity to fully and candidly tell their side of the story.

Is it possible that Mills was not on a "frolic and detour" of his own, but was in fact doing either what President Mason directly told him to do, or what he assumed, based on prior experience, she would want him to do? Is it possible that Jones had a prior experience with the football culture that permeates the University, and experienced what happens to those who dare to challenge it, and knew it would be counterproductive as well as personally risky to challenge the Athletic Department's "informal procedure" in this case?

I'm not suggesting for a moment that either -- or other possible scenarios -- are true. How could I know? All I'm suggesting is that there may be some explanations for their behavior other than the knee-jerk conclusion that "both are ignorant, incompetent, unfeeling SOBs who must be blamed for all that happened and peremptorily fired."

And note that both are "damned if they do, and damned if they don't" reveal their back story.

Based on the refusal of virtually all administrators to speak to the media about this case and the UI's procedure for handling it since last October, one possibility is that they've been instructed by President Mason not to. If that's the case, for them to tell their side of the story either to the Stolar investigators or the media -- especially if their story involves putting more of the responsibility on her -- would not bode well for their continued employment by the University. And even if they were to wait to speak out until after being fired, that would scarcely endear them to any potential future employer.

4. "Take me to your leader." For The Gazette to talk about the University's "lack of leadership" suggests that the University has a leader. Indeed it does. It is the President of the University of Iowa. Whatever happened to "the buck stops here"?

Patton is right. President Mason has been given "a base on balls" by Stolar, the media, many of the public, and the Regents (so far).

I'm not suggesting "this is all her fault" -- any more than it is all anyone's fault -- or that she should be severely punished in some way.

What I am suggesting is that both (a) in terms of what happened and why, and especially (b) what now to do about it, the Regents and their universities would have much to gain by understanding what was, and was not, done by the UI President's office to review, redesign and refine the University's procedures for handling sexual assaults by football players both prior to October 14 and since that day.

Especially is this so given what must have been known by all regarding the University's handling of the Pierre Pierce case. As the Press-Citizen editorialized this morning, "more than six years after the first sexual assault allegations against former Hawkeye basketball star Pierre Pierce, the University of Iowa still hasn't figured our how to handle such situations correctly."

Following October 14, what "management information reporting systems" did she have in place to track the Unviersity's handling of the case? What procedures does she have in place for monitoring not only crises, but the operation of the University generally?

After all, most of the Stolar Report's recommendations are kind of no-brainers: crimes should be reported to the police; alleged victims should have assigned advocates throughout the process; there ought to be a single office/clearing house; it should not be the University's general counsel; the function should not be merged in EOD with its responsiblity for sexual harrassment generally.

That's not to say we're not in the firm's debt for pointing them out. It's only to say that, once they do so, one's response tends to be, "Why, yes, of course. And why weren't we already doing that?"

It's one of those "which would be worse" choices. Would it be worse that neither the University president, nor anyone else in admnistrative positions, has thought to review its organizational structure and procedures for handling football players' sexual assaults over the past six years? Or would it be worse that a review was conducted during President Mason's first year in office but no one thought of any of the obvious remedies proposed by Stolar?

5. Diversion of focus. So a final reason why it's a mistake to focus on Mills and Jones is that it diverts the attention of the public, media journalists and editorial writers, Regents, and Regents' universities' administrators from the systemic, managerial and administrative problems that must be addressed if any meaningful progress is to be made.

Governance and Drafting the New Procedures

At the top I mentioned two Register editorials this morning with which I disagree. The second proposes that it is the Regents that should draft a new set of procedures for how the Regents' universities' handle athletes' sexual assaults.

I have written often and at length about the subject of board governance (board-CEO relationship) in general, Nicholas Johnson, "Board Governance: Theory and Practice," and with regard to the Iowa Board of Regents in particular, Nicholas Johnson, "An Open Letter to Regents on 'Governance,'" April 17, 2007 (with links to additional material of relevance to Regents' governance). And I'm not going to repeat all of that here.

The point, in this limited context, is that under a governance policy in which a board limits itself to setting what John Carver calls "ends policies" (and the rest of us might call "measurable goals") (and leaves it to the CEO to select the means for reaching those ends/goals), creating the specific structures, procedures, hiring practices and training programs -- or whatever else a CEO might choose -- for dealing with sexual assaults is the choice of the CEO, not the Board. The Board focuses on the results produced by the CEO in reaching the Board's ends/goals -- which constitute both the CEO's "job description" and the basis for his/her performance evaluation.

That's not to say, in this instance, that it would be inappropriate for the Board to express its dissatisfaction with what happened at Iowa this past year, only that the expression of that dissatisfaction should take the form of "ends policies" rather than specific procedures.

Moreover, rather than come up with a one-size-fits-all set of organizational structures and procedures, the Regents might at least want to consider starting with both present structures/procedures, and proposals, from each of the three universities. At a minimum, that kind of approach might come up with some creative ideas that would otherwise not be considered; and it might just be that there are very good reasons for having variations between the schools.

[More to come: the $1 trillion bailout.]

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