Prior to Rutgers University president Robert Barchi’s decision last December to suspend rather than fire basketball coach Mike Rice, a number of senior officials, including athletic director Tim Pernetti and at least one member of the board of governors, had watched the now-infamous video showing the coach kicking and hurling basketballs at players and taunting them with homophobic slurs.
For reasons not explained to anyone’s satisfaction, neither Barchi nor other members of the board elected to view the video before the suspension decision was made. When ESPN subsequently aired the video, Rice was immediately fired, as was Pernetti for purportedly advising Barchi that Rice’s conduct did not warrant termination.
In the aftermath of the firestorm that followed, Barchi and board of governors chairman Ralph Izzo engaged in that age-old pastime of blaming the lawyers when things go awry. Their criticism was unfair and undignified.
On Nov. 27, 2012, the day after Rutgers received the video, it retained the Connell Foley law firm to conduct an internal investigation into, among other things, whether Rice’s conduct violated either the university’s anti-discrimination, anti-harassment policies or his employment contract. On Jan. 21, Connell Foley issued a thorough and thoughtful report that faithfully answered the questions the university posed. It observed, unremarkably, that Rice’s inappropriate behavior was "directed at all players irrespective of their race, religion, ethnicity or sexual orientation, or their membership in any other category protected by law."
As a consequence, the report reached the conclusion that Rice did not create a "hostile work environment" as that phrase is defined in Rutgers anti-discrimination, anti-harassment policies.
The report determined, however, that Rice’s actions "crossed the line" of permissible conduct and violated Rutgers’ workplace-violence policy. In addition, the report correctly concluded — long before the video was publicly aired — that Rice’s conduct embarrassed and brought shame and disgrace to Rutgers in violation of his employment contract. Irrefutably, university officials could have relied on that finding to justify firing the coach. The report made no specific recommendation about discipline or termination, leaving that decision to the appropriate Rutgers officials.
Fairly read, the report provided ample support for a decision to terminate Rice. The decision of the university president and board chairman to scapegoat their lawyers, especially when they did not bother to watch the video, was another in a long series of bad decisions by Rutgers’ senior officials in their handling of this debacle.
One of the hazards of our profession is that at times our clients will be critical of us when, despite sound advice, they wind up with a poor result. From Rutgers, one of our state’s most revered public institutions, we expected better.
Board members Rosemary Alito, Joseph Buckley, Ronald Chen, William Dreier, James Hirschhorn, George Kenny, Peter Verniero and Robert Williams recused from this editorial.