Former AD Baker: Penalties for MSU ‘cultural problem’ could be very high

Correction: Merrily Dean Baker was director of women's athletics at the University of Minnesota. Her title was incorrect in an earlier version of this story.

A former Michigan State athletic director says the school has violated Title IX law and NCAA rules, which could bring historic penalties, including a possible loss of federal funding, because of serial abuse of women by convicted doctor Larry Nassar.

Merrily Dean Baker, MSU athletic director from 1992-95, said a failure to properly report Nassar’s violations of young women athletes and girls, which occurred under the pretense of medical treatments, was part of a deeply entrenched “cultural problem” at MSU that could bring devastating punishment from federal officials as well as the NCAA.

“This is a moment of soul-searching for anyone who has any affiliation with that university,” Baker told The Detroit News. “I’ve been quiet, but I listened online to the women at (Nassar’s) sentencing trial, and I wept with them. Nobody can play nice anymore. Nobody can take the high road and play the politically correct game. If there ever was a time for 100 percent transparency and its survival, this is it.

“And if it doesn’t happen, they will not survive.”

Title IX was passed by Congress in 1972 in a bid to bar gender discrimination and to guard against such ills as sex abuse and harassment in federally supported programs — universities included. Specific requirements deal with reporting of facts, and with investigations.

Key findings from a 2014 sexual harassment complaint against Nassar were found to have been withheld by a MSU Title IX investigator, providing one victim with deficient information.

Baker said two MSU executives, President Lou Anna Simon and Athletic Director Mark Hollis, who last week resigned, bore accountability for the Nassar crisis and for inattention that sustained it.

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Nassar last week was sentenced to prison for up to 175 years as part of his guilty plea for 20 years of acts committed against MSU women athletes, as well as gymnasts who competed for MSU and for USA Gymnastics. More than 150 women testified in a Lansing courtroom during seven days at Nassar’s sentencing hearing, detailing acts, anguish and enduring trauma from a doctor’s sexually invasive habits.

Michigan State is facing investigations from the U.S. Department of Education to the NCAA, for possible Title IX and NCAA violations. Attorneys consulted Monday agreed MSU could be in peril because of failures to properly report victims’ experiences, or because possible evidence against Nassar was concealed. Any such penalties would be separate from settlements of civil lawsuits, which some suggest could reach into the hundreds of millions of dollars.

MSU’s potential risk with the NCAA, Baker and attorneys emphasized, is that NCAA bylaws use much the same language as Title IX in safeguarding the health, well-being, and safety of students and athletes. Any serious offenses there could expose Michigan State to penalties from multiple parties.

The attorneys, who specialize in Title IX law, hesitated when asked Monday if MSU could be hit with a loss of federal revenue from the Department of Education, which would be a first for any school in America in the nearly 46 years since Title IX became law. MSU received $445 million in 2017 by way of federal grants and contracts, which was 15 percent of the university’s operating revenue.

“It never has happened before, but this is a terribly egregious case,” said Marissa Pollick, an Ann Arbor attorney and expert in Title IX law, who is a University of Michigan sports management professor, teaching sports law and gender equity. “Combined with the fact they were already under investigation, and that there appear to be (reporting failures) required under investigation, coupled with the massive public attention this has all gotten, I can’t predict what might happen.

“But the fact this has all happened while under investigation doesn’t bode well for Michigan State.”

The language Michigan State must fear, attorneys said, is whether MSU acted at any time with “deliberate indifference.” Such a failing would threaten the school in any civil litigation as well as in the Title IX and NCAA investigations.

Felice Duffy, a New Haven, Connecticut, attorney who has practiced Title IX law for 40 years, said the university’s vulnerability could be tied primarily to appearances the school did not adequately report students’ complaints.

“Any employee the student believes might have responsibility to report — even a residence assistant or a janitor — which would include a medical staff, they are required to report to the Title IX coordinator if they have any reason to know of potential sexual conduct,” said Duffy, who also is a former women’s volleyball coach at Yale. “If they don’t do that, that is a problem.

“It also sounds as if there was significant information from the investigation that wasn’t provided to some survivors — and that’s a real problem. That shows cover-up. That shows a lot of things.”

Baker said civil lawsuits by Nassar’s victims are a financial threat to MSU, separate from the specter of a Title IX investigation, or the NCAA probe, which was announced last week.

“I was at the NCAA as an assistant executive director,” said Baker, who worked there from 1988-92, “and I think possible NCAA sanctions are the least of MSU’s problems. I fear what will follow will be worse.”

Baker was hired at MSU in spring 1992 as one of the nation’s first women to head a major university’s athletic department. She had earlier been a gymnastics coach and a women’s athletics director at Princeton and Minnesota, and assistant executive director of the NCAA before coming to East Lansing at the behest of then-MSU president John DiBiaggio.

She had also helped with language and implementation when Title IX mandated equal funding and attention for women athletes and teams.

On her first day at MSU, DiBiaggio departed to become president at Tufts University. Baker soon was tangling with then-football coach George Perles, as well as with the Board of Trustees, principally influential Joel Ferguson, a longtime member with particular passion for the university’s athletic department.

Baker left in 1995, two years before her contract was to expire, pushed away by then-president M. Peter McPherson.

Two years later, the first reports about Nassar’s crimes are believed to have started.

“There is no question in my mind — and this is not a horn-honk,” Baker said, “but had I stayed through my first contract, this man (Nassar) would have been discovered, uncovered, stopped and remediated in 1997, with the first complaint.

“That’s the pain I live with. We’re talking (scores of) young women and children who would have not been molested if the Title IX rules had been observed and people had done their job.”

Baker said the failure by 14 people at MSU to adequately report Nassar’s crimes once information had been divulged is at the root of Michigan State’s failings and potential penalties. That disclosure came by way of a Detroit News story published Jan. 18. Baker says such breakdowns never would have occurred had she still been AD.

“Larry Nassar would have been pulled out of that examination room that night — until Title IX facts were proven or disproven,” Baker said. “Those responsible for undertaking that investigation should have discovered it. The entire Title IX review takes at least three months. This must have been done in three hours.”

Baker hired Tom Izzo, Jud Heathcote’s successor as basketball coach, and blames MSU and Hollis for “hanging him out to dry” as Izzo has been confronted on game days with questions about Nassar’s destruction and about his past role in sexual-assault claims against MSU players.

“The thing I’m feeling now is that I’m concerned the university’s higher-up people wanted to hang Tom and Mark (Dantonio) out to dry,” Baker said. “They shouldn’t have been the ones answering (legal) questions.

“I was very disappointed with Mark Hollis,” Baker said of MSU’s departed AD. “He’s a very creative person. I’ve always applauded him and respected him. But where was he the last two weeks?

“I think there’s a time and a place for them to be held accountable,” Baker said, referring to Izzo and Dantonio, “and I think they should be questioned by a proper investigation. But neither of them should have been forced to be out there answering for the university.”

Simon’s resignation, Baker said, was warranted.

“The buck stops at the top in almost every enterprise,” said Baker, 75, who now lives in Boynton Beach, Florida. “It goes back to the language throughout Title IX — that people in charge either knew, or should have known.

“I think the arrogance of the culture set in.”

That environment, Baker said, is rooted in an MSU board that so vexed her from the outset of her time at MSU, in the person of Ferguson. It was, she said, how problems ranging from Nassar’s crimes to the ESPN report often are conceived or fester.

Contacted Sunday, Ferguson declined to comment about Baker’s remarks or about the status of any investigations.

Baker said secrecy too often has been at the heart of MSU’s ills.

“I find it interesting that they (ESPN) were able to access and analyze what this institution couldn’t do in 20 years,” Baker said. “So many things are telling. And it goes back to one critical error: It is a cultural problem at MSU.”

Baker says MSU needs to act in ways far more fundamental than appointing interim presidents or athletic directors. She suggests that a team be put together for six months to a year to “ream out the cancer” in a university before more permanent replacements are chosen.

“Everything that has come down has been at the expense of women and young children,” she said, “and that is so disgusting to me. When the protection of the brand is more important than the protection of its consumers, the brand is irrevocably stained.”

It is, she said, ultimately about young women and girls betrayed by a doctor and by institutions that enabled him. It is about failure to report. Failure to act. Failure to follow through.

“When a child makes those accusations, you listen very clearly,” Baker said, “because 99 percent of those words are going to be accurate.

“It doesn’t matter — young women, young men, there is so much shame attached, so much humiliation attached. These kids can’t even go to their parents, and God forbid they go to any of their friends.

“When those who do summon the courage to seek help from an adult, and that adult silences them, they’re wrong. And for the victim it is a shriveling experience.

“And it is something that does not get repaired in a year,” Baker said. “These are grown women who will be living with this until they get help to resolve matters. And that could take years. The consequences are enormous.”

lynn.henning@detroitnews.com

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