David Jesse

Detroit Free Press

The University of Michigan has asked federal investigators looking into how sexual assault complaints are handled on campus for at least a dozen extensions for providing thousands of documents — part of a pattern of delays over two years, according to e-mails obtained from the federal government under the Freedom of Information Act.

The university also has tried to limit the scope of the ongoing U.S. Department of Education investigation — now more than 27 months old — by asking investigators to review fewer incidents than they requested, the e-mails show.

The legal maneuvering comes despite public pledges by the Ann Arbor school to fully cooperate with the investigation, conducted by the Department of Education's Office for Civil Rights. The investigation initially focused on three cases filed in 2014 that alleged mishandling of sexual assault complaints, but the OCR has now said it wants to look at documents related to about 180 cases and thousands of documents. It's standard procedure for the OCR to look at a wide swath of cases beyond the initial complaint when it opens an investigation into a school.

If a university doesn’t supply documents, the federal government could seek sanctions, including the halting of all federal financial aid funds. U-M received $44 million in federal Pell Grant funds and another $89.8 million in federal student loans in fiscal 2015, university records show.

Though such an extreme sanction is unlikely, OCR lawyers have expressed frustration in e-mails at the university delays. The university has said it needs the extra time because the document request is overly broad and burdensome to fulfill.

U-M is not alone in being investigated for how it deals with sexual assaults. The OCR is currently investigating more than 240 institutions nationwide over the handling of sexual assault complaints on campus. In Michigan, that includes Grand Valley State University and Alma College, a private school.

The average investigation completed by 2014 took 1,469 days, the OCR said earlier this year. An analysis by the Chronicle of Higher Education said the average case takes 1.3 years.

It took the OCR four years to investigate Michigan State University. The OCR issued findings last September knocking MSU for its handling of sexual assault cases and entered into a voluntary resolution agreement with the university.

Each university signs a federal financial aid program contract that says it will cooperate with any federal investigation and turn over documents when requested. But there aren’t provisions for how fast documents have to be turned over.

Sofie Karasek, co-founder of End Rape on Campus, a group that supports survivors, works on policy reviews and has advised students on filing OCR complaints, isn’t surprised to hear of delays.

“I’m not shocked,” she said. “There’s little incentive for a university to get to a speedy resolution.”

U-M spokesman Rick Fitzgerald said the "university is fully cooperating with the Office for Civil Rights' ongoing investigation and is interested in resolving the matter as quickly as possible. ... It is routine for this process to involve detailed back and forth discussion and information sharing. We have invested in resources to assist the university in providing the most thorough responses to OCR's requests,” he said.

Those resources include the hiring of an outside law firm, Pepper Hamilton, to defend the university. Fitzgerald declined to say how much the university is paying the firm, which is one of the most high-profile firms in this area in the country. He said the Free Press could submit a Freedom of Information Act request for that information. The Free Press did so on Thursday.

Most recently, Pepper Hamilton was hired by the Board of Regents at Baylor University to conduct an investigation of sexual assaults at the Waco, Texas, school. The probe led to the firing of the football coach and the resignations of the athletic director and the president. No investigation of Baylor by the OCR has been announced, although several experts believe one will be conducted.

Pattern of delays

The federal Department of Education declined comment on the e-mails or the process, but OCR attorneys are apparently tired of the delays.

“We need all the data we requested,” they wrote in a Feb. 24 e-mail to the university. “We cannot agree to narrow it any further. … We had hoped that the university would be actively accumulating this data since our (request).”

The OCR attorney’s e-mail came five hours after an attorney representing U-M e-mailed to ask again to turn over fewer documents than the OCR wanted.

The e-mail continued a pattern of delay requests that started from the beginning of the case, documents show.

The Free Press sent a FOIA request for any communication between the university and OCR on Feb. 11, 2016. The department returned 122 pages of e-mails in response. It exempted 137 pages from disclosure, citing privacy guidelines. The last e-mail the Free Press received was dated Feb. 24, 2016.

The investigation of U-M started on Feb. 21, 2014, after the OCR received a complaint alleging U-M mishandled a sexual assault case. A letter from the OCR to then-President Mary Sue Coleman outlined 21 different document requests, including asking for copies of any documents related to any sexual assault complaints filed with the university during the 2011-12, 2012-13 and 2013-14 school years. The OCR also wanted copies of policies, procedures and the name of anyone who investigates complaints.

The OCR gave U-M 15 days to compile the materials. That’s the standard length of time given.

Four days later, after a phone conversation, the OCR said it would OK an extension until April 7, 2014, for U-M to submit all the information.

U-M general counsel Timothy Lynch wrote back 45 minutes later, thanking the OCR for its flexibility and pledging to cooperate fully.

That started regular exchanges between the university and the OCR. U-M would e-mail asking for an extension — in one case saying travel schedules necessitated the delay. OCR would generally respond and grant the extension, even while asking for more documents.

In October 2014, the OCR notified U-M it had received another complaint and requested more documents. A third complaint was filed with the OCR the following month.

By Jan. 20, 2015, U-M officials said they had 3,000 documents gathered and were trying to organize them. They asked for another extension, which the OCR granted.

By 2015, negotiations centered on how many cases OCR would review. In a Dec. 21, 2015, conference call — as documented in a subsequent e-mail — the university again asked for a narrowing of the scope of review.

“The University asked whether OCR would be amenable to further narrowing the request that it sent the University on October 22, 2105, requesting all documentation for approximately 180 separate cases of alleged student sexual misconduct. As we explained, given the nature of the request — i.e., all the documentation relating to the University’s handling of sexual harassment allegations — it will be extremely burdensome for the University to collect all of the documentation …," read an e-mail from U-M attorneys, recapping the conference call.

“We then asked again why it is necessary for OCR to have all documentation regarding 180 different complaints as opposed to 100, 90, 75, 50 or some lower number in order to determine whether the University is appropriately handling student sexual misconduct allegations … .”

That prompted the Feb. 24 e-mail back from OCR, saying the agency needed everything it had requested.

Sexual assault reports up

U-M, like many campuses, is dealing with a rising number of reported sexual assault cases and taking criticism from the victims and from those accused of rape.

In 2015, a survey of students on U-M's campus by the Association of American Universities found that roughly 77% of female U-M students never reported they were victims of nonconsensual sexual penetration by force. About 37% of those said they didn't think anything would have been done if they had reported the incident.

A separate U-M survey released earlier in 2015, showed that more than 20% of undergraduate females said they experienced nonconsensual sexual behavior in the past year. About 12% of female undergraduates said they experienced nonconsensual sexual penetration.

Federal law mandates that universities and colleges investigate any claims of sexual misconduct. At U-M, the police are not automatically involved in a criminal investigation and are not called unless the accuser requests law enforcement.

The OCR has a standard playbook for how it handles investigations.

It sends a letter notifying an institution of the investigation. It gives the school 15 days to send in documents. It makes campus visits and does interviews. It gathers the documents. It can then enter into a voluntary resolution agreement, which spells out changes the institution will make and how OCR will monitor it, or it can issue sanctions, which can include the complete pulling of all federal financial aid from an institution.

Along the way, there are negotiations. There will be calls seeking clarifications on what exactly OCR wants and requests for delays to gather information.

All that takes time.

It is not uncommon for universities to ask for delays, said Kent Talbert, the former general counsel for the federal Department of Education and now an attorney who represents universities dealing with investigations.“Certainly I’ve done that in cases I’m working on,” he said. “To some degree, it becomes a question of reasonableness in whether a delay should be granted and for how long. That’s a subjective answer.”

Contact David Jesse: 313-222-8851 or djesse@freepress.com. Follow him on Twitter: @reporterdavidj