Saturday, August 8, 2020

Federal report: 'No way' for MSU to remedy past Clery Act violations

February 4, 2019
MSU Police Department cars on Nov. 1, 2018.
MSU Police Department cars on Nov. 1, 2018. —

Michigan State has consistently violated the Clery Act, a federal law that requires publishing statistics and information about campus safety at colleges and universities, according to a report from the U.S. Department of Education

Under the law, institutions are required to compile and publish an Annual Security Report.

The Department of Education's review checked the accuracy and completeness of university-reported crime statistics in Annual Security Reports from 2014 to 2018. Reviewers found serious instances of non-compliance with the Clery Act and instances of failure to develop systems to accurately report crimes.

Below are the instances of MSU's noncompliance with the Clery Act.

Failure to properly identify 'campus security authorities'

Federal regulations define campus security authorities, or CSAs, as “any institutional employee with safety-related job functions” and “any official that has significant responsibilities for student life or activities.” This includes coaches, trainers and employees in student housing and student affairs.

The purpose of a CSA is to create a broad network of reporters of campus crimes, in turn ensuring the completion, distribution and accuracy of the Annual Security Report. According to the Department of Education's report, MSU failed to properly identify CSAs and notify them of their responsibilities.

The first Clery Act coordinator for MSU, identified in the report as “Employee 8,” said in an interview that all university Clery coordinators were self-taught. They did not receive any background of their responsibilities under the Clery Act, though they were responsible for university compliance to the law. 

Employee 8 said Clery-related duties were a side responsibility even for designated Clery Act coordinators, listed under “other duties assigned” in addition to other unrelated legal responsibilities.

As a result of the lack of clarity, the number of identified CSAs remained in the 40s from 2011 to 2014. By 2015, that number shot up to 1,499.

Failure to compile crime statistics and disclose information

While the report credits MSU with including statistics specific to ex-MSU doctor Larry Nassar’s sex crimes in its most recent annual report, it cites the university for failure to record reports of his abuse in the years crimes were committed. 

There are 11 incidents listed in the report where survivors of Nassar’s abuse told designated CSAs like coaches and physicians about the abuse. The crimes went undocumented; by law, they were required to be included in the university’s campus crime statistics.

The report cites lack of administrative capability as one of the university's failures. The university failed to develop and enforce an adequate Clery Act compliance program while failing to take "swift and decisive action" to prevent Nassar's predatory behavior.

Nassar-related incidents dating back to 1997 

1997: The assault of Survivor A, a 16-year-old MSU junior gymnastics club member, was witnessed by Survivor B, a teammate who then told two assistant coaches. The coaches informed MSU’s head gymnastics coach, who then told Survivor A that filing a complaint “would have “very serious consequences for her, her family and for Nassar.” 

Survivor B told the head gymnastics coach Nassar had assaulted her too, but neither incident was included in the university’s campus crime statistics.

1999: Survivor C, an MSU track athlete, told her coach Nassar assaulted her. The coach told her Nassar was to be trusted and did not file a report.

1999-2000: Survivor D told her trainer she was assaulted while on the MSU softball team. When Survivor D later told that trainer's superior, the superior told her Nassar’s treatments were appropriate and that filing a complaint “would have consequences for her and her family and would cause serious controversy for Nassar and the university.”

2000: When Survivor E, an MSU volleyball player, reported her assault to her trainer, they told her to report to law enforcement. As a CSA, the trainer should have reported to MSU officials themselves, but they told Survivor E she couldn’t maintain anonymity if she filed. Survivor E did not file a police report due “to lack of support provided by the trainer."

2003: Survivor F, a young gymnast, reported her assault to an unnamed member of the MSU Sports Medicine clinic. The incident was never recorded or included in the university’s campus crime statistics.

2004: A family friend of Nassar’s, Survivor G, at 12 years old reported her several assaults to a licensed psychologist and tenured professor at Michigan State. Instead of reporting the incident, the psychologist mediated a meeting between Survivor G, her family and Nassar, where the “treatments” were justified as medically appropriate.

2007: While being seen at MSU Sports Medicine Clinic, Nassar assaulted Survivor H. Survivor H reported the abuse to a "close associate" of Nassar who did not report.

2008 and 2010: Survivor I, a Michigan State student employed as a simulated patient by the College of Osteopathic Medicine, told her supervisor Nassar had assaulted her. The incident was not included in the university's crime statistics.

2015: After Survivor J reported her assault to a university athletic trainer, no report was filed and the incident was not included in the university's campus crime statistics.

2016: Survivor K, a former MSU athlete, told her former strength and conditioning coach Nassar had sexually assaulted her. In an interview with the review team, the coach understood he was a CSA, ignored his training and talked to MSU’s Associate Director of Athletics instead of reporting. Neither university employee reported the incident.

Failure to warn the campus community of threats

The Clery Act requires institutions to warn the campus community of threats in a timely manner. The report found MSU continually failed to inform students and employees of repeated incidents and ongoing threats.

Over the two decades in which Nassar’s abuse was allowed to continue, his ongoing threat to the campus community was not revealed to the university community. In the 11 above incidents, CSAs failed to report and therefore the forcible sex offenses went unrecorded.

MSU also failed to issue timely warnings — including emergency alerts or MSU alerts texted or emailed to students — during instances of criminal activity or threats to public health.

The report lists failures to inform the community of 21 robberies and burglaries where perpetrators were not immediately apprehended and still posed a threat to the community, including cases where there was a pattern of criminal behavior or multiple descriptions of similar subjects were reported.

On one day in November 2014, MSUPD received reports of three burglaries in Holden Hall with eight student victims. Initial reports came in Nov. 13; by Nov. 20, 13 more burglaries had occurred. A total of 25 students had been victimized over a nine-day period until MSU alerted the community.

"Failure to issue timely warnings to notify the community of serious and ongoing threats deprives students and employees of vital, time-sensitive information,” the report reads.

MSU's Sexual Assault Program believed it was exempt from the Clery Act

The Clery Act exempts pastoral and professional counselors from the duties of a CSA. However, it does not permit an entire institutional program, such as the Sexual Assault Program, or SAP, to be considered a professional counselor. 

Because SAP provides education, advocacy and legal advice in addition to counseling, some of its employees have CSA responsibilities.

Crimes reported to SAP must be included in MSU’s annual report, but the university failed to do so during the review period, according to the federal report. When the review team asked for documentation of reported crimes, the university said SAP had none.

Since Larry Nassar's sexual abuse became public in 2016, the reports to SAP became “overwhelming,” according to Interviews with SAP employees during the review. These increases in reports to SAP are not seen in the 2016 annual report.

Next steps

At its conclusion, the report says MSU has the opportunity to fix its policies and procedures to come into compliance with the Clery Act. However, it notes there is no way to remedy past situations in which Clery violations led to additional, unnecessary threats to the community.

"As noted throughout this report, the findings documented by the Department constitute serious violations of the Clery Act that, by their nature, cannot be cured," the report reads. "There is no way to truly 'correct' violations of these important campus safety and crime prevention laws once they occur."

The university is crafting a response to the report and will cooperate with the department in its response, MSU Spokesperson Emily Guerrant said in a university press release.

MSU Acting President Satish Udpa commented on MSU's commitment to campus safety in the release.

“The safety and well-being of our campus community is our top priority,” Udpa said. “We welcome the opportunity to work with experts to review and strengthen areas as we renew our commitment to improve.” 

Read the department's full report here.

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