Opinion: DeVos' new guidelines on handling campus sexual assault raise risk of another MSU

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Mark Hollis retires as Michigan State's athletic director in the wake of the Larry Nassar sexual assault scandal. Chris Solari/Detroit Free Press

Michigan State University’s failure to investigate years of sexual abuse allegations against physician Larry Nassar may become even more the norm in light of changes to the process of addressing sexual violence in education announced in September by Education Secretary Betsy DeVos.

The new guidelines provide schools the option of adopting a higher standard of proof in Title IX cases, allow schools to create appeals processes only for those accused of perpetrating sexual violence and give significant autonomy to educational institutions to create their own response protocols. Given what we have learned about the decades of abuse perpetrated at the hands of an employee at Michigan State, does it really make sense to give schools even more power and discretion to control the internal mechanisms of reporting and investigation of sexual violence? 

Several years ago during my time as a faculty member at Michigan State University College of Law, I served as a co-principal investigator on a National Science Foundation grant that investigated the reporting of sexual violence in the context of prisons, using the groundbreaking Michigan class action lawsuit, Neal v. Michigan Department of Corrections, as a case study. My interdisciplinary work on this project inspired subsequent research into how sexual violence is perpetrated (and subsequently minimized and ignored) within other closed and quasi-closed institutional systems like the military, immigration detention facilities and institutions of higher education. 

So while Michigan State was benefiting financially and earning positive recognition from this project and other similar grants that address systemic gender inequality, it was likely simultaneously ignoring the abuse of hundreds of its female patients and female student athletes, allowing sexual assault to carry on, unchecked, for decades. It is difficult to comprehend how the university where I researched the complications associated with the reporting and investigation of sexual violence in closed systems was itself illustrating these same complications in its failure to take seriously and fairly investigate and adjudicate the claims of more than 150 women and girls.

The quasi-closed nature of a system like higher education creates an environment in which sexual victimization proliferates, often without knowledge of or intervention by those within or on the outside, and it also illuminates reasons why individuals may choose not to come forward: they may not know how or to whom to report; they may fear retaliation for their disclosure; they may face concerns that no one will believe them; or they may internalize the idea that what happened is an inherent part of that system.

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Internal procedures allow for sweeping discretion and significant power imbalances characterize such settings (professor-student or doctor-patient). These institutions are also dis-incentivized (in part to avoid legal culpability) to appropriately respond to or acknowledge and report the abuses that occur within them. 

The Michigan State scandal is unique from many cases of sexual violence because the criminal justice system in fact held the perpetrator accountable, albeit after university law enforcement and administrators engaged in years of inaction. But what of accountability for the institution in which this abuse was perpetrated, tolerated and ignored? And what of the future perpetrators like Nassar who are able to commit horrendous acts of violence against students and faculty even more easily now in light of DeVos’ recent rollbacks to the protections afforded victims under Title IX?

What happened at Michigan State is not that different from what occurs within universities and other systems across the country. Media headlines routinely underscore the prevalence of sexual violence and institutional non-response in these settings. Title IX provides a framework to guide investigations (now limited by the current Department of Education guidelines), but are institutions of higher education really in a position to effectively implement impartial and fair processes given their quasi-closed and insular nature?

Consider that the law enforcement agency at Michigan State that initially investigated the allegations against Nassar is staffed by employees of the same system that is charged with allowing the abuse to occur in the first place. The panel of physicians conducting the only investigation into his so-called treatments was comprised only of Michigan State employees. There exists a certain loyalty among the actors in these systems that influences their ability and willingness to see a situation objectively and ultimately do what is right.

At a time when the Trump administration is rescinding protections for victims of sexual violence on college campuses, we must continue to push back against these changes, create innovative mechanisms of reporting, investigation and adjudication within systems like higher education, and develop powerful mechanisms of external oversight to ultimately prevent the perpetuation of sexual violence like that which occurred at Michigan State.

Hannah Brenner is an assistant professor of law at California Western School of Law. Her research focuses on gender-based violence in institutions and gender inequality in the legal profession. From 2009-2016 she was a lecturer in Law at Michigan State University College of Law.