Column: Break MSU’s secrecy addiction

Frank D. LoMonte

Many state colleges and universities are too secretive. Losing sight of their obligations as public agencies, some habitually conceal serious crimes and drag their feet on answering requests for documents.

But even by the minimal standards of American higher education, Michigan State University has long been a bottom-feeder — addicted to a self-destructive pattern of concealment that came disastrously crashing down with the case of disgraced gymnastics doctor Larry Nassar.

As the horrors unfurled at Nassar’s sentencing hearing, it was impossible not to ask whether Michigan State — where he held a faculty position, practiced osteopathic medicine and ran a gymnastics club — could have detected and ended his sexual predation far earlier.

That a prestigious public university might be so corrupt as to cover the tracks of a serial molester should be beyond contemplation. But at Michigan State, regrettably, it is not.

MSU has fought aggressively for decades to evade public accountability, insisting that its operations are none of the taxpayers’ business. Unlike most university oversight boards, Michigan State trustees meet in closed-door secrecy to make decisions, then hold a brief and uninformative public session to unanimously ratify what’s already been decided.

The practice is unconscionable. But according to the Michigan Supreme Court, it’s legal, because Michigan’s state constitution gives universities independence from the laws that govern all other state agencies.

That independence leaves the universities with great leeway to decide for themselves what level of public access is proper — and at MSU, that answer is generally “zero.” The university fiercely resists complying with state open-government laws when compliance might disclose something unflattering.

MSU and the University of Michigan lobbied successfully for legislation drastically reducing the amount of information available to the public about candidates for university presidencies, and then fought in court to escape even nominal disclosure requirements. Today searches are conducted in complete secrecy.

The university battled in court for two years to withhold the police incident report of a brutal 2006 home-invasion inside a campus dorm — the type of report that is routinely made available on request by other police agencies.

Journalists from ESPN were forced to sue to obtain complete copies of MSU police reports, from which the university had illegally withheld the names of athletes accused of crimes.

Even when Nassar’s crimes came to light, MSU doubled down on secrecy. The university has resisted FOIA requests from the Lansing State Journal for records of any curative measures taken as a result of an investigation into the university’s Title IX compliance — and even blanked out key portions of the contract with the outside law firm that did the investigation.

And even after ESPN had won its previous legal challenge, MSU again selectively withheld police reports about campus sexual assaults that the sports network requested — taking the drastic step of filing a “preemptive-strike” lawsuit against ESPN last May. The suit was so frivolous a judge quickly threw it out, but the university still bought itself months of delay.

It has belatedly come to light that the university placed Nassar under restrictive protocols in his contact with female patients to avoid a repeat of a 2014 incident that prompted a Title IX sex-discrimination complaint (which MSU dismissed, concluding no violation had occurred). But without making those restrictions known, Nassar was on his honor to obey them. Had patients been notified, they could have made an informed decision about him.

But public notification might also have damaged MSU’s reputation, and in American higher education today, reputation often trumps safety.

MSU has belatedly asked for a state review of how the Nassar case was handled. But there is no reason to be confident that those findings will be publicly released and discussed. In the days following Nassar’s stomach-churning sentencing hearing, MSU trustees said they’d heard the public’s outrage and taken it to heart. That reassurance is meaningless unless the university ends its culture of concealment, starting with trustees unlatching their meeting-room doors.

Michigan’s legislature can, by two-thirds vote, place an amendment repealing the university system’s autonomy on the next statewide ballot. Declaring universities to be “law-free zones” where compliance with state statutes is essentially voluntary has created arrogant, out-of-touch institutions that regard themselves as above the law. It’s time to take that independence away, before more unsuspecting people can be victimized by secrecy.

Frank D. LoMonte is a professor of media law and director of the Brechner Center for Freedom of Information at the University of Florida.