CAMPUS SECURITY AND CRISIS MANAGEMENT: BEST PRACTICES
June 26-29, 2002
Len Niehoff
Butzel, Long, P.C.
Ann, Arbor, MI
Some Observations for the College or University Lawyer
Introduction
One of my favorite New Yorker cartoons shows two medieval knights on a
battlefield. One of them is carrying the most hideous looking weapon imaginable. The
other one is admiring it and saying: “Excellent. Let’s run it through Legal.” (The New
Yorker, November, 1998)
I want to begin by reminding us all what a typical college campus is, and then
“running it through Legal.” Here goes.
A college campus is a place where a disproportionately large percentage of the
population is made up of people aged 18 to 22. This is, of course, a segment of the
population particularly vulnerable to accidents, death by alcohol or drug abuse, and
suicide. It is a place where people live together in concentrated quarters, such as
dormitories and apartments, where fires, sexual assaults, and property thefts can and do
occur. It is a place that employs hundreds of people, ranging from physicists to floor
cleaners. Such a large and complicated workforce will, of course, result in instances of
sexual harassment, racial discrimination, stalking, and walk-outs. It is a place that may
house extraordinarily valuable technologies -- like massive computer systems -- which
can be disabled, and extraordinarily dangerous technologies -- like nuclear reactors -which can pose biohazards, and extraordinarily controversial technologies -- like animal
research laboratories -- which can offer prime targets for activists. It is often a place
where every imaginable kind of malpractice might occur: legal malpractice in the law
school clinic, medical malpractice in the hospital, psychological malpractice in the
counseling center, and so on. It has roads where accidents can happen and athletic
programs and facilities where people can drown, be severely injured, or be indicted for
gambling. It may have a few traditions – like building a huge bonfire or running through
campus naked on graduation day – that tempt fate. It has a security force that helps with
some of these problems, but periodically is itself the problem. And, to top it all off, it is a
place where any effort to achieve a higher level of safety and security through tight
regulation is greeted with deep suspicion, unabashed hostility, and immediate threats of
revolution.
If you “run this through Legal” the answer is obvious. No self-respecting riskaverse lawyer would ever advise you to build or operate a college. They might instead
suggest you undertake a less dangerous business, like juggling flaming swords or
trucking high explosives through the French Alps.
If you think I overstate matters, just take a look at this year’s NACUA annual
program materials, and the titles of some of the sessions: “Danger to Self / Danger to
Others: The Suicidal Student”; “Crime on Campus: Liability, Reporting and Prevention”;
“Managing Terrorism Risks: A Post-September 11th Evaluation”; “Hazing, Abuse and
National Association of College and University Attorneys
1
Sexual Harassment of the Student Athlete”; “Reducing Liability for International
Programs Post-September 11th”; “Managing Conflicts Among Institutions,
Whistleblowers, and Suspects”; “The Sexual Assault Case and the Student Judiciary.”
Any outsider who looked through these program materials would wonder why we get out
of bed in the morning and go to work.
In looking through these titles an obvious point emerges, which is that the broad
issue of campus security and crisis management rapidly breaks down into numerous
narrower issues. And from this an equally obvious point follows, which is that different
types of crises will present different tactical challenges. Except in the broadest, most
abstract terms, the “best practices” for managing the response to a series of bomb threats
are not the same as the “best practices” for managing the response to a fraternity hazing
death. And, to stress the point of greatest interest to this audience, that is true at least in
part because of differences in the legal problems presented.
I plan to leave the specifics about particular types of crises to sessions that focus
on them, and to the excellent materials that have addressed these narrower issues and
were presented at previous NACUA conferences. Consistent with the title of this session,
my observations will necessarily be general in nature, though I hope they will
nevertheless be helpful to you. What I want to do is describe several issues that I think
should be of particular concern in your role as attorneys in creating, implementing, and
executing crisis management plans. These are based not only on my experience in
working with several universities in managing some matters that could fairly be described
as “crises,” but also on my review of dozens of college and university crisis management
plans.
My first observation is that it is very common for crisis management plans to be
written and developed by committees, and for those committees to include the university
counsel; similarly, I would note that it is very common for those plans to create a “team”
to manage crises, and for that team to include the university counsel. Now, involving the
university lawyer in these projects certainly makes sense -- and I could even fairly
describe it as indispensable -- in light of the vast array of legal issues that arise in the
context of various crises. Nevertheless, I want to highlight a lurking concern, which I
will pose as a question: When you are serving as a “crisis manager,” are you acting in
your capacity as a lawyer?
The answer to that question is obviously: “sometimes.” Sometimes you will be
providing legal advice to an appropriate university representative, perhaps even in a
meeting that qualifies as “confidential.” But in the course of sitting through all these
planning meetings and managing all these subsequent crises you will almost certainly
find yourself talking to people who clearly do not qualify as university representatives -such as students, parents, physicians, firemen, policemen, and so on – and who may even
have interests adverse to those of the institution. Lawyers obviously have a very
important role to play here, but crises naturally cause many things to spin out of control,
and you want to beware that a crisis does not spin you into a conflict of interest or the
improper disclosure of a confidence. So my first observation is that you should not
succumb to the temptation to put on yet another hat. College and university attorneys do
too much of that already, and the problem, of course, is that you have only the one head.
My second observation is somewhat related. In reviewing these plans, I have
been struck by the fact that most colleges and universities appear to have created them
National Association of College and University Attorneys
2
without consulting any outside authorities, such as security consultants. I should hasten
to add that I am generally not a great advocate of consultants. One of my other favorite
New Yorker cartoons shows a collection of police officers standing over a dead body.
One of them is saying, “From the violent nature of his multiple stab wounds, I’d say the
victim was probably a consultant.” (The New Yorker, March, 2001) Of course, we resist
retaining consultants not only because they can cost a lot of money, but because most
lawyers believe that they can attain sufficient mastery over anything that matters after
only a few hours of close study. And the only population more inclined to such
presumption is, of course, academics. So, if you have lawyers and academics in a room
working on a crisis management plan, why would you need a consultant?
I want to answer that question by reading something to you from an actual crisis
management plan at a university that shall remain nameless. This is a checklist of
questions the plan instructs you to ask if someone calls in a bomb threat – and I should
add that the instructions specify you must use this exact wording: “When is the bomb
going to explode? Where is it right now? What does it look like? What kind of bomb is
it? What will cause it to explode? Did you place the bomb? Why? What is your
address? What is your name?” Is it just me, or does this sound like the silliest list of
questions imaginable?
But now to my point: I don’t know anything about bomb threats, so I don’t know
whether this list is as silly as I think. For all I know, this list comes directly from FBI
manuals based on years of documented research. If I consulted with someone with
expertise about such things, however, I would know whether these questions make sense.
My third observation about these plans does not require me to talk with a
consultant, but simply to draw on my experience as a lawyer. I might summarize this
concern by reference to three propositions: (1) in a sense, a crisis management plan sets
a standard by which the institution indicates it will respond in the event of a disaster; (2)
whenever a client of mine – of any kind – sets a standard for itself I start to worry; (3) I
worry the most when I think the client has not taken sufficient measures to ensure it can
and will meet the standard it has set for itself. The good intentions behind your crisis
management plan will offer little consolation if that plan becomes the measure of your
failure.
The published descriptions of these plans often reflect the tremendous zeal that
animated the development phase. The university created a committee and the committee
created a plan and the plan was put on the website and, behold, everyone called it good.
But a lot of these plans include no information about how the plan will be monitored,
tested, revised, up-dated, and so on. A lot of these plans do not include procedures
designed to figure out whether they work on day one, let alone two years after day one.
In this sense, many crisis management plans remind me of many strategic plans:
handsome documents utterly devoid of viability and incapable of healthy, organic
growth. And, for reasons that this audience should find obvious, a college that adopts an
untested and perhaps unachievable standard has not simply engaged in a futile act, it has
engaged in a legally dangerous act. Finally, to underscore the obvious, the very nature of
crises prevents us from holding the incident temporarily at bay while we evaluate the
plan’s response to it, much as we all might like to say sometimes, along with Henry
Kissinger, “There cannot be a crisis next week. My schedule is already full.” (New York
Times Magazine, June 1, 1969)
National Association of College and University Attorneys
3
My fourth observation is that some of these plans include things that are certainly
very, very bad but that are not – at least in my view – crises. For example, I’m sure we
would all join in condemning in the strongest possible terms such things as sexual
harassment by an instructor or the sale of alcohol to minors. But I’m not at all sure they
belong in a crisis management plan, although that is where some colleges have placed
them. I appreciate the difficulty in drawing this line – and I am mindful of Margaret
Thatcher’s immortal statement: “It is exciting to have a real crisis on your hands, when
you have spent half your political life dealing with humdrum issues like the
environment.” (Speech to Scottish Conservative Party conference, May 14, 1982)
Nevertheless, some crisis management plans strike me as considerably overbroad.
You might wonder why including too many types of incidents in a crisis
management plan causes concern. One worry, of course, is that a plan too weighted
down with unnecessary baggage will cease to serve as the lean, nimble instrument we
want in a genuine crisis. But, to me, a larger worry is that the management of an issue set
forth in the plan will contradict the management of the same issue set forth somewhere
else. When we think of bomb threats, we all think of a crisis and so we naturally turn to
our crisis management resource for help. But when we think of an instructor harassing a
student or a minor purchasing alcohol we tend to look in other directions, to deans of
student services and department heads and counselors and so on. As I say, I get nervous
whenever clients set standards for themselves that they cannot meet. I get just as nervous
when they set standards that may contradict other standards they have set.
My final observation is this. I am deeply skeptical of committees and of
committee work. In general, I share Carl Byers’s view that “Committees are a group of
the unfit appointed by the unwilling to do the unnecessary.” Nevertheless – and the
concerns I have expressed here notwithstanding – I have been impressed by the work of
many of the college and university committees that have labored to create crisis
management plans. One of the things that impresses me the most is that so many of them
have clearly not just adopted boilerplate from some other institution, but have thought
carefully about the nature of their school, how it is structured, how it can react most
effectively, and what types of crises they may face. I was very happy to discover that, so
far as I can tell, no Midwestern college has a hurricane response plan.
If you are developing such a plan, and you want to get some sense of what others
have done, I would encourage you to steer away from anything that someone offers you
as a generic “model” plan, and to study instead what institutions that “look like yours”
have done. “Models” can give you some ideas, but I think you will find them a limited
resource. Public versus private, small versus large, urban versus rural, technological
versus liberal arts, research institution versus teaching college – this is not a “one size fits
all” project. Most colleges and universities that have such plans post them on their
websites, and you know which institutions bear the closest relevant resemblances to your
own.1
You may also wish to consult: “Emergency Preparedness Checklist,” materials for the
presentation “Be Prepared: A Crisis is Coming to Your Campus,” NACUA Annual
Conference, June 26, 2000; and Estelle Fishbein, “Responding to an Incident of Campus
Violence: Some Do’s and Don’ts,” materials for the presentation “Welcome to my
Nightmare: Predicting and Managing Violence on Your Campus,” NACUA Annual
1
National Association of College and University Attorneys
4
Thank you for your attention, and permit me, if you will, to leave you with two
final thoughts: First, remember that someone once said “in crisis there is opportunity.”
Second, remember that whoever said those words was almost certainly not an appointee
who served at the pleasure of the president. Go forth and conduct yourselves
accordingly.
Conference, June 30, 1999. Finally, I would encourage you to take a look at United
Educators’ Safety Dispatch of February 2002, entitled “Crisis Management: The
Benefits of Focused Thinking.” This document includes a helpful discussion of the
distinction between a “crisis” and an “emergency,” and includes references to several
crisis management plans, including those of Stanford University and North Carolina State
University.
National Association of College and University Attorneys
5