Preventing Sexual Harassment and Misconduct in Higher Education: How Lawyers Should Assist Universities in Fortifying Ethical Infrastructure

The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university\u27s policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of Sciences, Engineering and Medicine, called Sexual Harassment of Women, Climate, and Consequences in Academic Sciences, Engineering and Medicine. The Report points to the inadequacy of legal mechanisms and statutes that incentivize creation of policies and procedures that focus on symbolic compliance with current law and avoiding liability. Because organizational culture is the most potent predictor of sexual harassment, the Report argues that universities should move beyond legal compliance and focus on promoting practices to promote a culture of civility and respect.In order to change culture and climate in higher education and to improve policies and procedures, university administrators should use the analytical framework of ethical infrastructure to evaluate the organization\u27s formal and informal systems, as well as the climate that supports those systems. Using such a framework, universities can proactively deal with sexual harassment and misconduct. To systematically examine ethical infrastructure, the essay proposes that higher education institutions use a self-assessment tool to examine all aspects of ethical infrastructure. The conclusion calls for legal scholars and practitioners, including members of the American Law Institute Consultative Group on Sexual Assault, to partner with other experts to develop a comprehensive self-assessment tool for examining and improving the ethical infrastructure related to sexual harassment and misconduct