Straighten Up & Fly Right
EC (Executive Committee, MIT Corporation)
and GP (Goodwin Procter LLP)

Kenneth R. Manning

Nat King Cole’s classic song, “Straighten Up and Fly Right,” offers an apropos breather for those of us troubled by the commutative entanglement of EC and GP:

A buzzard took the monkey for a ride in the air
The monkey thought that ev’rything was on the square
The buzzard tried to throw the monkey off his back
But the monkey grabbed his neck and said, now, listen, Jack

Ain’t no use in divin’, what's the use of jivin’

The buzzard told the monkey, you’re choking me
Release your hold and I’ll set you free
The monkey looked the buzzard right dead in the eye and said
Your story’s touching, but it sounds like a lie.

MIT Corporation’s EC recently (January 10, 2020) released what purports to be a meticulous review of MIT’s involvement with convicted sexual predator Jeffrey Epstein. The investigation was supposed to have been carried out with integrity, balance, objectivity, and fairness, with the intent to unearth and lay out central facts in the case. EC hired GP, a firm retained by MIT over the years. At the Institute faculty meeting on September 17, 2019, faculty members raised concerns about the potential conflict posed by this if objectivity, which mandates a certain distance, were to be achieved. But EC stuck with its choice. Allegedly, GP would fact-find in a probative way and carry out an independent review so that the Institute could begin to restore its reputation and fashion policies to address problems arising from the Epstein affair. Unfortunately, what began as a dreadful state of affairs has been made worse by GP’s flawed investigation undertaken at EC’s request.

The report is defective. Rather than concentrating on facts, it is replete with opinions. For example, the multiple assertions of “good faith” and “errors” in judgment to characterize motivations and actions of individuals raise doubts about the report’s neutrality and objectivity.

The methodology used was imprecise or obscure. For example, one of the data retrieval techniques – keyword searches in electronic material, emails, etc. – is nowhere clarified with specifics as to what search terms were used. Without this information it is impossible to evaluate how relevant or comprehensive the data retrieved and analyzed were. Similarly, no list of interviewees was appended, so it is impossible to evaluate if the interview process was thorough, germane, or complete. In a footnote, the report states: “only emails containing search terms suggestive of relevance to this investigation were actually reviewed. Email also was collected from certain former MIT faculty and staff, utilizing the same search terms.” What were the criteria for relevance, and what terms were used in text searching? Why were these elements not disclosed? The report buries key findings and fails to pursue important questions, claiming that “no evidence” exists when in fact what is meant is that GP unearthed none or, possibly, either overlooked or failed to find it.

By naming certain individuals and not others, the report selectively targets some for closer scrutiny than others. This practice is perplexing given that when a person’s professional position is referenced, minimal effort would reveal his or her identity. Identities are thus not protected, if such was the intent. In any case, it would have been fairer to name all or to name none.

The report shows an imbalance in the treatment of individuals. Some individuals’ records were scoured and laid out in glaring detail, while records of others with comparable relevance were handled more gingerly and less intrusively. All should have garnered the same treatment.

The report was shared in preliminary form with EC months before its release, thereby undermining claims of impartiality. During the fall of 2019 GP shared with EC multiple iterations before the final report appeared. For what purpose? Who said what to whom? What changes were made? How reliable is GP’s claim that changes were restricted to names, titles, positions, and overall organization? Without independent access to early versions, this cannot be determined.

Our faculty deserves criticism as well. A committee of faculty members, handpicked by the Faculty Officers, reviewed GP’s report and spoke with the lawyers who prepared it. A letter to the faculty from the Faculty Chair, dated January 21, 2020, outlines what the committee found. Unwisely and wrongly, the committee agreed to receive information from GP that GP insisted had to be privileged and protected, barring committee members from sharing it with the MIT faculty at large. While the committee expressed “regret” about this confidentiality agreement, regret is not enough. Why would a representative body agree to terms keeping information secret from the constituency it represents? This decision weakens the committee’s credibility and inserts a wedge between committee members and their colleagues. Also, if committee members did not ask for access to earlier versions of the report, they should have.

Finally, how many billable hours and at what cost per hour was the investigation carried out? What did EC pay GP for the investigation and report?

The firm’s report is inadequate, to say the least. EC promised us an objective, thorough, transparent investigation, a basis to reassess and move forward, but we got something less.

Straighten up and fly right
Straighten up and stay right
Straighten up and fly right
Cool down papa, don’t you blow your top.

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