Northwestern Hires Ex-AG Lynch as Hazing Probe Faces Hurdles
Northwestern University on Tuesday announced it has retained former U.S. Attorney General Loretta Lynch, now a partner at Paul, Weiss, Rifkind, Wharton & Garrison, to lead what it terms an “independent review” of the school’s hazing scandal. The “results” of Lynch’s probe will be made public, the school said.
Lynch’s investigation will be the second of its kind. Northwestern previously engaged former federal prosecutor Maggie Hickey and her law firm, ArentFox Schiff, for a similar purpose. The university released a two-page executive summary of Hickey’s investigation last month, but despite pressure by faculty and others, has not shared the report—even in redacted form.
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Hickey found sufficient evidence of hazing that rose to abuse in the football program but did not find former head coach Pat Fitzgerald knew about the transgressions. In recent weeks, former Northwestern players, including from other Wildcats teams, have sued the school over alleged hazing. Fitzgerald, whom Northwestern president Michael Schill initially suspended for two weeks and then fired after reconsideration, has retained counsel and could sue the school for breach of contract and other claims.
Lynch, the first black female attorney general in U.S. history, is experienced in high-profile sports legal controversies. She serves as an attorney for the NFL in its defense against Brian Flores’ racial discrimination lawsuit. The NFL also retained Lynch to investigate a dispute between then-Washington Commanders owner Daniel Snyder and three limited partners. Lynch, 64, led the Justice Department’s prosecution of dozens of figures implicated by the FIFA corruption scandal for racketeering, wire fraud and money laundering.
Northwestern pledges that Lynch will scrutinize “the processes and accountability mechanisms in place at the university to detect, report and respond to potential misconduct in its athletics programs.” Her investigation will not only look at hazing but also “bullying and discrimination of any kind.” The school adds that Lynch’s involvement is one of several measures undertaken by the school and its beleaguered leadership. Northwestern has added mechanisms to better monitor and better train individuals to prevent hazing.
Like any “independent” investigation commissioned by a university or sports organization, Lynch’s will face obstacles.
Although Northwestern labels the investigation “independent,” the university has retained Lynch—meaning it will pay her and her law firm—and has thus formed an attorney-client relationship. Lynch may be independent in the sense that she is not taking direction from the school, but by virtue of her position, she is neither neutral nor a mere narrator of what happened.
That distinction is particularly important since Northwestern faces lawsuits over hazing and could face others that lead to pretrial discovery. The university can claim that evidence gathered by Lynch is shielded by attorney-client privilege and work-product doctrine, which exempts materials obtained by attorneys in investigations if in anticipation of litigation or trial. Lynch’s colleagues are familiar with that possibility. The NFL asserted attorney-client privilege with Paul, Weiss, Rifkind, Wharton & Garrison partner Ted Wells, whom the NFL hired to co-lead what it termed an “independent” investigation into Deflategate.
Lynch, as a private citizen, also lacks subpoena powers that could compel testimony or the sharing of emails, texts and other sensitive materials. Witnesses who speak with her will not be under oath, meaning they wouldn’t risk perjury charges by knowingly lying.
Witnesses, including university employees, might also be inclined to blame co-workers as a way of protecting their jobs. Some witnesses, including the players who are either accusers and accused, might also omit certain pieces of information or outright decline to participate in an interview. A student accused of misconduct would have reason to not admit information that university officials could use to expel them, that an alleged victim could use to sue them or even that prosecutors could use to seek charges.
The timing of Lynch’s appointment is also important. Lynch will investigate a scandal that has become a national controversy. By this point, some individuals who would have cooperated earlier might be less inclined to cooperate now; this is no longer a school controversy—it’s now one that has a legal fallout and that will attract the media’s spotlight likely for years to come.
Lastly, while the results of Lynch’s probe will be made public, it’s unclear if the report itself will also be made public. The “results” could resemble the two-page executive summary the university shared in the Hickey investigation. While Northwestern is obligated to follow education and privacy laws regarding the disclosure of student information, its unwillingness to share more than summations has likely exacerbated the situation.
