Fixing the Outcome by Fixing the Rules?

by James A. Bacon

What are the rules of the game in the state’s investigation of racism at the Virginia Military Institute?

That question is now front and center, as has been revealed in an interim report released by Barnes & Thornburg, the law firm selected to pursue the investigation. Investigators have been sparring over whether VMI’s lawyers should be allowed to be present when investigators are questioning cadets, faculty and staff. 

The stakes are huge. Barnes & Thornburg will gather evidence, present its conclusions, and make recommendations with the potential to transform the culture of the military academy. The outcome of the investigation is potentially a matter of life and death, institutionally speaking, for the military academy. 

VMI has every reason to regard the investigation as an adversarial proceeding. The inquiry arose from a series of Washington Post articles alleging “relentless racism” at the military academy. Governor Ralph Northam then expressed his “deep concerns about the clear and appalling culture of ongoing structural racism.” Structural racism, not alleged structural racism. Then, when selecting a firm to conduct the investigation into VMI, the administration picked a Washington, D.C., law firm that publicly proclaims its commitment to combating racism and “the larger social forces” responsible for it.

Central to the inquiry, Barnes & Thornburg is interviewing cadets, faculty members and administrative staff. It is entirely legitimate for investigators to seek protections for people stepping forward with information. Indeed, the VMI administration has promised not to take disciplinary action against anyone providing information to the investigative team. Furthermore, according to the interim report, VMI and Barnes & Thornburg are working on a joint statement that will encourage cadets and others to be forthcoming and protect their anonymity.

Fair enough. Does VMI have any due process rights as well? This is not a criminal or civil proceeding, so there will not be a trial. VMI will never have an opportunity to cross-examine its accusers in a court of law. If Barnes & Thornburg comes out with a highly critical report, will VMI have an opportunity to respond? Will it have access to depositions and testimony? Will it have the opportunity to highlight conflicting or uncertain testimony? Will it have the opportunity to argue, if the evidence supports it, that investigators prejudiced the testimony through leading questions, implied threats or other forms of pressure?

The rules of the game matter not just for VMI but for every other higher-ed institution — or any other public institution — that the Washington Post targets for an expose and Northam and/or his successors decides to investigate.