The Unseen Risk: Identity-Referent Incidents as a Compliance Risk in Higher Education

Landon D. Reid

Traditional approaches to compliance in higher education fail to consider the risks caused by identity-referent incidents (IRIs). IRIs are incidents of bias related to an individual’s identity (e.g., race, gender, sexual orientation, age, disability, etc.) for which the college or university is a causal nexus. Even as colleges and universities have become increasingly aware of the risks posed under their traditional compliance obligations stemming from both laws (e.g., HIPAA, FERPA) and rules (e.g., EPA, OSHA), those same institutions often fail to view IRIs as risks that could also violate federal (e.g., Title VI, VII, IX, ADA) and state (e.g., Human Rights) laws as well as the standards of both accrediting bodies and the institutions themselves. Moreover, IRIs pose a reputational risk to colleges and universities. By considering the framework of inattentional blindness, it is possible to teach institutions to see IRIs as risks.

The Limitations of a Traditional Compliance Perspective

A traditional compliance focus obscures the risks posed by IRIs. First, institutions fail to account for IRIs as a risk because of outmoded understandings of what constitutes risk. The traditional view deals with risks on an ad-hoc basis, and there is little advanced planning to proactively deal with risks. Second, institutions understand risk in relation to statutory violations such as criminal convictions, suspensions, and fines. This focus on statutory violations is rooted in the Guidelines of the United States Sentencing Commission, which delineated the type of compliance program that would mitigate criminal penalties. Third, a traditional compliance focus anticipates risks associated with known, but less certain, statutory violations implicating institutional liability. From tenure denials to student accidents, many institutions of higher education can—and do—anticipate the possibility of litigation.

Given the traditional view that considers risk in relation to outward facing, externally imposed sanctions, IRIs are currently only recognizable as risks when they clearly, and immediately, create statutory liability. If an IRI does not do this, it will not be viewed as a risk. As a result, even when IRIs occur with some frequency, they will not be recognizable as risks, because the institution is focused elsewhere attempting to prevent what it already understands as risk (i.e., violations of law).

Reputational Risk

In an era dominated by institutional rankings, almost all of which include a reputational component, IRIs also pose a serious reputational risk. Social media and the 24-hour news cycle ensure that campus incidents are broadcast worldwide in an instant. The graphic and sensational nature of IRIs creates a firestorm of negative attention. Consider, the uproar following the release of a video of University of Oklahoma Sigma Alpha Epsilon fraternity brothers chanting:

There will never be a n—er SAE

There will never be a n—er SAE

You can hang ‘em from a tree,

but it will never start with me

There will never be a n—er SAE!”

More than two months after this video went viral, 8 of the first 25 hits using the Internet search term “University of Oklahoma” were about this event. A contemporaneous Internet search using the string “‘University of Oklahoma’ and (racism or racist)” produced 180,000 hits. For context, a search related to the university’s storied football team, “‘University of Oklahoma’ and football” produced 755,000 hits. The chant depicted in the University of Oklahoma video showed individuals engaging in private conduct, off-campus. As such, the university was not on the hook from a traditional compliance perspective despite the profound reputational risk.

IRIs undermine the perceived value of an institution. There are more than 4,600 degree-granting, Title IV institutions, and there is intense competition among them for the brightest and most financially well-off students. IRIs signal to prospective students and their families that an institution may not be a safe place for women, racial minorities, or LGBTQ students. Even for wealthy, non-minority students, IRIs can signal a divisive campus environment inconsistent with egalitarian values or campus unrest inconsistent with conservative values. Skyrocketing tuitions make it harder to justify the expense of attending a toxic institution or one that does not fit a student’s or family’s values.

Learning to See IRIs

The inattentional blindness framework illustrates how to help institutions see IRIs as risks. Inattentional blindness, as described by Arien Mack, explains how we fail to see “highly visible objects” when we are focused on something else. The problematic effects of inattentional blindness can be mitigated when the unseen object is—or becomes—personally meaningful. In addition, individuals are more likely to notice an unseen object when they expect to see it.

First, making IRIs more relevant to institutional decision-makers mitigates the effects of inattentional blindness. The simplest way to do this is to have a more diverse group of decision-makers for whom the identities implicated in IRIs are personally relevant. Second, institutions should recalibrate their expectations regarding the likelihood of IRIs occurring, focusing on proactive risk mitigation. This could be accomplished using assessment tools already familiar to college and university administrators such as climate surveys, strategic plans, and institutional self-reports. Third, institutions can better see IRIs by including them in their own institutional policies. These policies are tailored to meet the needs and values of each institution.

Ultimately, the incorporation of IRIs into the traditional compliance universe of higher education will require creative and innovative leadership. Leaders must be able to see the problems and understand how institutions of higher education may be uniquely suited to address IRIs.

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Landon D. Reid

Landon D. Reid is an associate in Hughes Hubbard & Reed’s New York office.