After Nassar Conviction, Michigan State Goes on Trial

Jake May, The Flint Journal-MLive.com via AP

The investigations and trials of Larry Nassar are coming to a close. The investigations and trials of Michigan State University are just beginning.

Nassar, a former associate professor of osteopathic medicine and sports doctor at Michigan State, pleaded guilty late last year to seven counts of first-degree criminal sexual misconduct. He was sentenced last month to at least 40 years in prison. Another criminal trial is concluding in Michigan, and more than 200 women have come forward with statements about being sexually abused by Nassar as long ago as 1994.

Now that the wide extent of the doctor’s criminal activity has been revealed in the courts, officials in Michigan and from organizations across the country are turning their focus to the university where Nassar worked for nearly 20 years.

The Nassar Scandal and the Crisis of Michigan State’s President

Within a year the university lost two chief executives — Lou Anna K. Simon, sank by the scathing, heart-rending testimony of the sports doctor’s scores of victims, and John M. Engler, whose interim presidency ended amid a backlash over his bare-knuckled tactics.

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The Michigan attorney general, the U.S. Department of Education, and the National Collegiate Athletic Association have all announced they will be examining how Michigan State responded to reports of Nassar’s sexual abuse, some of which happened on campus.

In the case of the attorney general’s investigation, criminal charges are possible. And the very same individuals who might find themselves in the special prosecutor’s crosshairs could be named and scrutinized as part of the civil suits filed by more than 140 women, so far, against the university and other groups affiliated with Nassar.

Absent the possible criminal charges and legal penalties, holding the university or its employees accountable for any wrongdoing in any of the inquiries will be difficult. The university has already spent more than a year preparing its legal defense; the Education Department has a very limited range of penalties available; and the NCAA has had numerous problems punishing colleges in similar situations.

In the end, the real punishment for the university may come down to reputational damage and dollars. Lots of them. The potential cost of civil lawsuits and settlements and legal fees could add up to hundreds of millions of dollars, not to mention the incidental costs to, say, hire a new president and athletic director.

The Michigan Attorney General

Questions and concerns about the role and actions of university officials have been raised for months in numerous news reports and, more recently by the victims in their courtroom testimony.

The public and political pressures have led to the resignation of the president and athletic director, among others, and calls for the general counsel and even the entire Board of Trustees to step down.

Now, elected officials, including the state’s attorney general, Bill Schuette, are looking for answers. Last month the university’s trustees sent a letter to Schuette, asking him to oversee an independent review, in order to clear up allegations that the university has not been transparent or that it has engaged in a coverup.

A week later, Schuette announced that his office was already conducting an “open and ongoing investigation into systemic issues with sexual misconduct” at the university. That investigation is being led by a special, independent prosecutor with assistance from the assistant state attorney general and the Michigan State Police (not to be confused with the university’s own police department).

“It is abundantly clear that a full and complete investigation of what happened at Michigan State University, from the president’s office on down, is required,” Schuette said in a news release.

The state police will also seek “to determine if other crimes have been committed,” according to the news release.

A spokeswoman for the attorney general declined to comment on the investigation. But the police could identify whether some staff at the university, for example Nassar’s medical colleagues, should have alerted law enforcement to allegations of sexual misconduct against minors.

The state’s child-protection law includes several categories of medical staff as “mandated reporters,” and failure to do so is a criminal offense.

At the same time, the university’s outside counsel, the former federal prosecutor Patrick Fitzgerald, has for nearly a year been devising a legal defense against the possibility of civil and criminal violations. In a December letter to Schuette, Fitzgerald said the university and his own legal team were directed to report any criminal activity to the trustees and to law enforcement.

But none has been uncovered, Fitzgerald wrote: “We believe the evidence will show that no MSU official believed that Nassar committed sexual abuse prior to newspaper reports in late summer 2016.”

The Education Department

Betsy DeVos, U.S. secretary of education, has also vowed to hold the university accountable. “My heart breaks for the survivors of Larry Nassar’s disgusting crimes,” DeVos said in a prepared statement in January. “What happened at Michigan State is abhorrent. It cannot ever happen again — there or anywhere,” she added.

In July the Education Department’s Office for Civil Rights began an investigation into whether the university violated Title IX, the federal law meant to prevent gender discrimination including sexual assault. It was the third time the department had opened an investigation against Michigan State since 2011, according to Chronicle research.

The first two cases were settled in September 2015 with a voluntary “resolution agreement” in which the university agreed to set new policies and procedures for handling complaints of sexual misconduct.

This past fall, however, after the university was well aware of the allegations against Nassar, officials asked to end the extra monitoring by the Education Department required under the 2015 agreement, according to a report from ESPN. Department officials rejected that request, because the university had not notified them of the allegations against Nassar in 2014 when the previous federal investigation was still underway.

But aside from another resolution agreement there is little more the Education Department can do to punish the university, even if it violated its previous agreement.

“From OCR’s perspective there are a limited number of outcomes,” said Olabisi Ladeji Okubadejo, a lawyer with the firm Ballard Spahr and formerly with the Education Department’s Office for Civil Rights.

The department has never imposed the ultimate penalty for violating Title IX, which is removing a college’s eligibility for receiving federal student aid. But a new resolution agreement could require the university to reimburse students for the costs associated with the abuse, she said. Such costs might include money they spent for private counseling or even tuition they paid to the university.

Michael L. Buckner, a lawyer who specializes in sports law, said that any findings in the department’s Title IX investigation could also provide fodder for the civil lawsuits that are proceeding against the university.

The Education Department has also begun an investigation to uncover possible violations of the Clery Act, the federal law that requires colleges to report crimes committed on campus.

Those investigations often run in tandem with a Title IX investigation but are carried out by a specially trained team from the department’s Federal Student Aid office, said Alison Kiss, executive director of the Clery Center.

Penn State University was fined $2.4 million for violating the Clery Act — the steepest penalty that the department has ever issued over this law — for problems uncovered after the Jerry Sandusky sexual-abuse scandal.

Since then the penalties for each Clery violation have nearly doubled, from $27,500 per infraction to more than $54,000. And the department has taken a harder line on enforcing the law, Ms. Kiss said, by focusing not only on failures to report crimes but also on how the campus administers the law.

The NCAA

The inquiry that has garnered the most skepticism is that of the NCAA. The association has come under criticism in recent years both for penalizing colleges for issues that were seen as outside its jurisdiction and failing to penalize colleges for issues that were clearly under its authority.

“What has happened at Michigan State University is egregious. What’s at issue is if it falls in the jurisdiction of the NCAA,” said Josephine R. Potuto, a professor of constitutional law at the University of Nebraska at Lincoln. Potuto is also the university’s faculty athletic representative and has been deeply involved in issues of athletic governance and sports law.

The NCAA’s letter of inquiry to Michigan State cites a section of the association’s constitution that deals with protecting the welfare of student-athletes and also a bylaw that elaborates on that issue.

But a constitutional provision has never been used solely as the reason to trigger penalties, Potuto said. And the bylaw cited is one of the association’s “commitments,” which are nonbinding and can be used only to inform the creation of other rules, she said.

Buckner, the sports lawyer, said he agreed with that analysis. In the case of Penn State, the NCAA didn’t have the jurisdiction, expertise, or authority from the membership,” he said. “I feel the same way about Michigan State.”

In 2012, the association imposed a $60-million fine on Penn State related to the Sandusky abuse scandal. But eventually, that and other penalties were rolled back, and a state law allowed the university to spend the fine in the state of Pennsylvania.

“The membership has had several years since Penn State to create bylaws that would give them authority in these kinds of matters and they have failed to do so,” Buckner said.

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.