I left Waco in 2010 and moved to the cool woods of Minnesota at the other end of Interstate 35. That interstate is a road I have traversed many times between the two spots. Smack in the middle is a fascinating place: the Flint Hills of Kansas.
Every spring, the tallgrass prairie there burns, red flames and smoke against a stark blue sky. It’s not an anomaly; rather, it’s how the ecology there is constructed. Grow, dry and burn — a cycle that repeats like clockwork.
Unfortunately, the political ecosystem at Baylor University bears an uncomfortable resemblance to the Kansas prairie. The last three presidents at Baylor (Robert Sloan, John Lilley and Ken Starr) have all been fired by the board of regents. Each time, there has been a wave of controversy, conflict and humiliation for the departing executive. The grow-and-purge cycle that is good for the prairie is not good for a university.
The one constant through this pattern of calm and tumult is a board of regents that consecutively embraces and rejects leaders. To fix this problem, they must go beyond just picking a new president they think will do a great job; after all, that’s how the past three cycles began. It is time for the board to re-evaluate how it engages with the university and the contentious issues that crop up at any university.
The latest upheaval is rooted in a legitimate and important concern. The Pepper Hamilton report presented to the board included allegations that Baylor officials not only failed to address rape allegations but in at least one instance retaliated against someone who complained of rape. That is, as the board put it, “horrifying.” While many have weighed in for or against the board’s actions in response to the report, I won’t do that here. If I learned one thing as a federal prosecutor, it was this: Don’t decide a matter while key facts are obscured. Here, most key facts about who did what and when are still cloaked in darkness.
So why can’t Baylor enjoy a presidency that does not end in flames?
My hunch is that secrecy has something to do with the problem. Discussions of troubling subjects are too often tightly confined to the board of regents itself. Tensions build among the members of that board like volatile chemicals in a bottle till it explodes. In more functional schools, a regular burbling of public debate that includes governing bodies leads to a different type of chemistry. A more active, ongoing discussion between the governing board and various stakeholders outside formal meetings must be part of the solution at Baylor. Trusting the president of Baylor simply to relay all concerns has not worked out.
One element of that change should involve the relationship between the board of regents and Baylor students. Yes, there is a nonvoting student representative on the board, but no one student can represent the voices of an entire, diverse student body. A broader engagement is needed if the true urgency of an issue like the rape of students is to be addressed. Those discussions can then inform the directions that the board gives to the president and other officials.
One step toward this kind of openness would be allowing Pepper Hamilton to make a presentation on its findings directly to the students of Baylor. I understand there is no “written report” to release. However, the skilled attorneys who briefed the board should do the same for the very people who were put at risk and answer their questions (while protecting confidential information about individual victims). That would signal a new outlook. It also invites the students into a role as valued participants in a process and outcome that ultimately is about them.
Eleven years ago, I got to be part of a remarkable event. Bill Underwood had just been chosen as interim president of Baylor, and I sat on the stage with Underwood and Interim Provost Randall O’Brien as in turn we addressed a raucous crowd in Waco Hall. At the end of the session, no one knew quite what to do. As the crowd watched, Underwood, a tall man, simply strode straight out of the auditorium. When he opened the back door, the stark, strong sunlight of Texas in June suddenly flooded in — that “best disinfectant” of transparency that Judge Starr recently referred to, quoting Justice Louis Brandeis. In this time of tumult, the board of regents should strive for sunlight and move boldly to break the pattern of growth and destruction that is better suited to an old prairie than a great school.
Formerly of the Baylor Law School faculty, Mark Osler is the Robert & Marion Short Distinguished Chair at the University of St. Thomas School of Law.