Michigan State's rape lawsuit statement likely violated privacy laws

Michigan State University likely violated at least one federal student privacy law, and maybe another campus crime reporting law, when it issued a statement Wednesday detailing counseling center visits by a student who is suing the school, experts said.

But the biggest problem with the statement, experts and other victim rights advocates said, will be its effect on future students who need counseling center services or want to report a sexual assault.

"They are sending a very clear message — don’t report and don’t sue us,” said nationally known victim rights advocate Brenda Tracy, herself a survivor of a gang rape by football players when she was in college. “I don’t know how anyone on campus would trust the university enough to go to their counseling center or to report an assault. They would just think the university is going to out them.

"It’s horrible. It goes to exactly why MSU is in trouble in the first place. It shows their culture exactly.”

MSU's statement was in response to a lawsuit filed Monday.

The lawsuit, filed in federal court, claims three Michigan State basketball players raped a student in 2015, one week after the Final Four loss to Duke, and the university's counseling center coerced the woman not to report it to authorities.

The woman never reported the alleged sexual assault to police, said Karen Truszkowski, the woman’s attorney. But according to the lawsuit, the woman did report the incident to a counselor at the Michigan State University Counseling Center, which she claims failed to properly advise her and even implied it would not be in her "best interest to report the incident to law enforcement."

Truszkowski could not be reached for comment immediately.

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According to MSU's policy on relationship violence and sexual misconduct, counselors generally are not permitted to report allegations of rape or relationship violence to the Title IX office or police.

On Monday, the university declined to comment on the suit, but on Wednesday it issued a statement denying all the allegations and discussing time periods when the student went to the counseling center. The statement also contained details about what had been told to her by counselors.

That's a problem, said two privacy experts.

"There is a federal regulation that enables educational institutions to release otherwise-confidential student records in limited circumstances when necessary to defend themselves against claims by students or parents, but the exception applies only to disclosure to the courts and not to the general public," Frank LoMonte, a professor and director of The Brechner Center for Freedom of Information at the University of Florida.

The Family Educational Rights and Privacy Act exception says: "If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student's education records that are relevant for the educational agency or institution to defend itself."

LoMonte said that's pretty clear.

"The regulation does not apply in this situation," he said, adding universities often fight the release of any information, claiming it would violate FERPA. "When a journalist asks to see records about a high-profile sexual assault, even anonymized, universities invariably take the position that records cannot be released even without names because they could be traced to an identifiable individual. Indeed, the University of Montana has spent four years fighting in court to withhold records of a sexual assault case involving a well-known athlete, arguing that the records cannot effectively be made anonymous because of the high-profile nature of the case.

"It's the rankest form of opportunism for universities to conceal records of this kind when they're needed to inform the public, and yet declare them non-confidential when needed to rehabilitate the university's image."

Not using the student's name doesn't let MSU off the hook, experts said. FERPA says no protected information can be released that can be used to identify a student.

MSU spokeswoman Emily Guerrant said the university didn't violate FERPA.

"Because Jane Doe is not actually named in the lawsuit, the information we provide is not personally identifiable, and therefore it is not a violation of FERPA," she told the Free Press.

That's likely not the case, said S. Daniel Carter, president of Safety Advisors for Educational Campuses and a longtime national expert on campus crime issues.

"This appears to be discussing specific details," Carter said in a phone interview after the Free Press read him the statement. "If anybody at the institution could figure out who this person is because of the information, it would be a violation. There seems to be enough there that people could figure out who this student is."

Carter agrees that there is an exception allowing a university to disclose educational records, but notes there's a specific route for that.

"The allegations were made in a civil complaint and the response should be in a civil filing," he said. "The proper venue to defend a lawsuit is in court, not in public statements. This is not consistent with FERPA."

Carter said the statement could also violate the Clery Act, a law requiring crimes to be reported to a campus community. That law also has provisions to protect privacy, including: "Maintain as confidential any accommodations or protective measures provided to the victim, to the extent that maintaining such confidentiality would not impair the ability of the institution to provide the accommodations or protective measures."

The Clery Act also requires MSU to have a privacy policy in place and follow it.

Tracy agreed the statement crosses lines.

"It's so detailed you have to wonder if somebody can figure out who this student is," she said after reviewing MSU's statement at the Free Press' request.

But even if it isn't legally wrong, it's morally wrong, she said.

"MSU just let every survivor on their campus know there are serious consequences if you attempt to sue us and/or report sexual assault," she said.

Katherine Redmond, the founder of the National Coalition Against Violent Athletes, agreed with Tracy.

"I'm dumbfounded," she said. "It's almost like they (MSU) are doubling down and doing the absolute wrong thing. This is a personal attack on this (survivor). This is exactly what (Larry) Nassar victims have been saying MSU does. It makes any kind of remorse fake. Their strategy just seems to be scorched earth."

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