MSU cited for 'serious noncompliance' with Clery Act related to Nassar, crime reporting

EAST LANSING - A U.S. Department of Education report, highly critical of Michigan State University's handling of sexual assault reports related to Larry Nassar and campus-wide safety issues, found the university's failures "may have posed an ongoing threat" to the campus community.

The report details results of a review conducted in the wake of the Nassar scandal and is the result of a U.S. Department of Education investigation of MSU's compliance with the Clery Act, which requires universities to issue timely notifications to the campus of a variety of crimes.

The report cites issues related to handling of complaints against Nassar, the former university doctor who sexually abused hundreds, the failure to properly categorize and disclose crime statistics and that MSU "lacked the ability and/or willingness to properly administer" to administer federal regulations.

"The safety and well-being of our campus community is our top priority," MSU Acting President Satish Udpa said in a statement. "The Nassar crimes caused so much pain to so many people, and we have more work to do to address those issues and support the survivors and our community. We welcome the opportunity to work with experts to review and strengthen areas as we renew our commitment to improve."

The report is a serious finding of fault, said S. Daniel Carter, president of Safety Advisors for Educational Campuses and a national expert on campus crime issues, particularly the finding of a lack of administrative control.

"Short of an audit saying you stole money from us, this is the most serious finding," Carter said after reviewing the report. "What they are saying is MSU didn’t have the policies and procedures in place to keep campus safe. That’s a big deal. Everything in here is extremely serious. When the proper policies and procedures are in place and followed, you make campus a safe place."

He said the finding of lack of administrative control is generally a signal that a large fine is coming.

"It’s a very big deal."

The report lists 11 Nassar victims — identified as Survivor A, Survivor B, etc — who reported their abuse to university officials, including a strength and conditioning coach who was told in 2016.

"There is no question that the details of the crimes reported by Survivors A, B, C, D, and E were communicated to officials who were" campus security authorities, the report said. Campus security authorities are university employees with safety-related job functions.

"Additionally, each of these crime victims reported conduct that clearly rose to the level of a Forcible Sex Offense or an incident of Fondling. Moreover, the crimes reported by these individuals ... unquestionably posed a serious, ongoing threat to campus community members, and, most specifically, to female patients of MSU Sports Medicine."

MSU spokeswoman Emily Guerrant said the university knows that it has made mistakes.

"We know we’ve failed survivors and their families," she said.

Guerrant added that MSU received the report in December and is working on a formal response, but that there's no timeline for it to be submitted to the federal officials. She stressed that the report's findings were preliminary and contained no new information to the university.

MSU Trustee Kelly Tebay said board members hadn't seen a copy of the report, which was sent to the general counsel's office on Dec. 14. Tebay declined to comment until she had read it. The Free Press/Lansing State Journal gave her a copy of the report.

Messages were left seeking comment from the remaining trustees.

As with other investigative and media reports that examined MSU in recent years, the report details instances when women or girls reported their abuse to university officials and subsequent failures to respond properly to those disclosures.

Among the instances in the Clery report is a 2016 disclosure by a former MSU athlete to a university strength and conditioning coach, who had recently been trained on his reporting requirements.

"(The coach) admitted that he knew how to report such an incident, but ignored his training, choosing to speak to Michigan State’s Associate Director of Athletics about the matter instead," the report read. "However, the coach never reported the incident" to MSU Police or to staff in MSU's Office of Institutional Equity, which had responsibility for reviewing such complaints under Title IX.

The coach and the associate director of athletics are not named in the report.

The report cited several findings of "serious noncompliance" with federal law, including the failure to properly classify and report crime statistics and the failure to issue timely warnings.

Not all of the findings related to Nassar. The report details 21 instances from 2011 to 2016 when crimes such as burglaries and robberies occurred and no campus warnings were issued.

"Failure to issue Timely Warnings to notify the community of serious and on-going threats deprives students and employees of vital, time-sensitive information, and effectively denies the campus community the opportunity to take adequate steps to provide for their own safety and to increase their situational awareness," the report reads.

The report cited broad administrative failings, like the failure to set up internal controls to identify and stop Nassar's decades of abuse and the failure to "exercise sufficient oversight, governance, and/or coordination" of MSU officials who were responsible for safety-related functions on campus.

Federal investigators also found failures within the MSU Sexual Assault Program to produce or maintain "adequate documentation about crimes that were reported" because officials and staff thought they were exempt from reporting requirements.

A similar issue was found in the university's human resources department, where decentralization and lack of uniform policies between human resources offices for different departments raised "a serious compliance concern" for the ability to track and report potential crimes.

The Clery Act requires reporting crime statistics on campus and a geographic area around campus, like parts of East Lansing.

"In its request to the (East Lansing Police Department) for Clery Act statistics related to housing for Greek organizations, religious living units, and cooperative houses from (calendar years) 2011-2016..., Michigan State neglected to include necessary geographic components, and, in fact, excluded important geographic components from its request," the report reads.

Federal scrutiny is nothing new for MSU. In 2015, the U.S. Department of Education completed an investigation of MSU's handling of sexual assault and harassment on campus.

That investigation determined MSU failed to respond to complaints in a timely manner and may have contributed to a “sexually hostile environment” on campus.

The university promised campus-wide reforms after that investigation and changed many policies.

A new investigation of the same issues was also announced in the wake of Nassar's sentencing hearings. That inquiry is ongoing.

What comes next for MSU?

The last Michigan university to be found to have violated the Clery Act was Eastern Michigan University, which was fined $350,000 in 2008 for covering up the murder of a student, Laura Dickinson, in her dorm room. At the time, it was the largest Clery Act fine ever.

That was surpassed in 2016, when the feds imposed a $2,397,000 fine against Penn State University after extensive violations were uncovered in the wake of the Jerry Sandusky child sex abuse scandal. Penn State announced on November 25, 2016, that it would not contest the fine.

MSU will have between 60 and 90 days to respond to the report. Then the department can either make changes to their report or come back to campus to do further investigation. Then another letter will be issued. At that point, the department could recommend that an administrative judge issue a fine. The fine could be appealed. The final determination on how much MSU would have to pay could be made by Secretary of Education Betsy DeVos, who is a donor to MSU and has long ties to it.

The fine system is set up for a maximum of $55,907 per violation. A determination a few years ago by then-education secretary Arne Duncan mandates that any violent crime that isn’t reported – including sexual assault – be assessed the maximum fine.

The Clery Act could pull all federal financial aid from MSU. According to federal databases, MSU received $423.4 million in 2016-17, the most current year available.

Contact Matt Mencarini at (517) 267-1347 or mmencarini@lsj.com. Follow him on Twitter @MattMencarini.