Couch: An MSU trustee outed a whistleblower in a sexual assault case; that's a problem

Graham Couch | Lansing State Journal

Mitch Lyons might have made an honest mistake in revealing on the radio this week that it was Auston Robertson who alerted Mark Dantonio in January to a troubling incident involving three of his Michigan State football teammates.

Perhaps Lyons, a member of MSU’s Board of Trustees and former Spartan football player, truly misspoke and confused the sexual assault case against Robertson with the charges facing Josh King, Donnie Corley and Demetric Vance, as he told multiple news outlets.

The absence of malice makes little difference.

Bottom line: Lyons outed a whistleblower in an MSU sexual assault case. And did so at a time when the university is trying to convince its community that it’s safe to come forward.

People aren't making enough of this.

It’s irrelevant that it was Robertson, an unsympathetic figure, facing his own charges of sexual violence from an incident months later. That’s a juicy detail. But not pertinent to whether two young women were actually raped.

Lyons’ comments, though, regardless of intent, created doubt for those looking for reasons to doubt. It doesn’t matter who told Dantonio about the alleged crime. Nor does Robertson’s alleged behavior later on have anything to do with the cases against King, Corley and Vance.

“When Auston Robertson came into (Dantonio’s) office for a regular weekly meeting (in January), Coach D asked him the regular questions he typically asks him,” Lyons said Tuesday afternoon on a statewide radio show out of Grand Rapids. “ … (Robertson) alluded to the fact that something happened, and Coach D had sense that it involved some sort of sexual allegation.”

Lyons did not return messages left seeking comment for this column.

His confusion, if that’s what it was, raises questions about what information should be shared with whom on campus. Robertson’s name isn’t yet available in any public documents or findings regarding the cases involving his three now former teammates. I’m told it’s in the Title IX report, which Lyons said was made available to board members last week.

“I believe Coach D read it yesterday, as did I,” Lyons told host Bill Simonson on The Huge Show. “That was about what happened. The allegations from the complainant and the respondents. … It’s not a good story. I’m not going to go into details at all.”

Except he already went too far.

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If trustees have been reviewing every Title IX case involving sexual violence as a matter of understanding the issues facing the university, perhaps there’s an argument that they should see these sensitive reports. It's hard for me to imagine that's what's happening. So why in this instance?

“Trustees are routinely given access to information they need or request as they perform their duties,” MSU spokesperson Jason Cody said.

Pure curiosity doesn’t cut it when it comes to getting to see a Title IX report. Nor does the high-profile nature of this case. MSU football players deserve the same privacy protections as any other student.

“They’re the trustees of the university,” Cody later said. “They’re the fiduciaries and overseers of this university. They’re publicly elected. They’re obviously entitled to have access to information so they can stay briefed and make informed decisions that they need to make.”

Which decisions, though? They aren’t part of the police or Title IX investigations. They’re entitled to be informed. But Title IX investigative reports are usually reserved for the eyes of a very few, those who need to know — the parties involved in the case, the police, MSU’s General Counsel, its Office of Institutional Equity and President Lou Anna Simon, for example. In this instance, certainly Dantonio, as well.

The board and others should know the findings. The details of the report, I’m not so sure. Less so after Lyons told Simonson and his listeners about Robertson and then described the Title IX report as “not a good story.”

There is also the question of whether MSU is violating the Family Educational Rights and Privacy Act, known as FERPA, by making Title IX reports available to board members, and whether Lyons broke the law in sharing some of the contents of this case with a radio audience.

You hear the term FERPA a lot these days. Universities, MSU included, stand behind it — and sometimes hide behind it — when they resist explaining details or decisions.

It’s an important statute, but more narrow than universities might have you think, applying only to the contents of a student’s individual educational record.

“A Title IX investigative report would not be in the ‘education record’ of Joe Student Witness,” according to Student Press Law Center Executive Director Frank LoMonte.

“In fact if it did qualify as an education record, I'm sure the college's lawyers would have discouraged Michigan State from sharing the record with the trustees,” continued LoMonte, "as trustees normally would not be within the circle of people authorized to inspect actual education records.”

At MSU, final Title IX investigative reports are maintained in a student’s individual education record.

“There’s no big paper file,” Cody said. “Student educational record is a term of art that encompasses pretty much everything related to the student.”

“They can't have it both ways,” LoMonte countered. “If the document is an education record, then it shouldn't have been shared with the trustees unless the trustees had a specific business need to see the record that related to the student's educational status, such as an appeal of an expulsion.”

“If they're going to insist that the document is a FERPA record, then they're confessing that the trustee violated FERPA by leaking information out of that record,” he said. “I can't imagine their legal department really wants to make that confession."

The notion that an education record is “a fluid and all-encompassing one” is wrong, LoMonte said.

“That's just not the law. The Supreme Court has said that FERPA applies only to centrally maintained records that would be part of the file produced to the student if the student asked to inspect his own file. … The idea that FERPA is some wall-to-wall security carpet that covers every mention of you when you enroll in college is just a fantasy of college P.R. departments, but it's not the law and never has been.”

That doesn’t mean the contents of the Title IX report should necessarily be available via a Freedom of Information Act request. There is a FOIA exemption for “unwarranted invasion of personal privacy.”

I’d argue Robertson deserved that privacy. So do other whistleblowers, even if their names might eventually come out in court, as Robertson’s likely will.

Most importantly, victims of sexual violence need to know their privacy will be protected. There’s a reason sexual assault has the lowest reporting rate of any felony. The reasons most often given: fear of retaliation, of not being believed, of reliving an already hellish experience.

MSU, now more than ever, needs victims and witnesses to feel safe. A trustee carelessly sharing sensitive details on the radio harms that trust.

“It just generates a general concern about a disclosure of other things,” said Karen Truszkowski, the lawyer for the alleged victim in the cases against King, Corley and Vance.

Lyons likely didn’t mean to hurt anyone. He also didn’t need to know the information.

Contact Graham Couch at gcouch@lsj.com. Follow him on Twitter @Graham_Couch.