Months before the female victims of Larry Nassar reached a $500 million settlement with Michigan State University, administrators quietly settled a very different battle over sexual misconduct.
For more than two years, the parents of a male undergraduate student had waged an expensive legal battle to clear their son’s disciplinary record at MSU. He’d been found in violation of the university’s sexual misconduct policy for touching his on-and-off girlfriend’s breast in the hours after the couple had engaged in sex.
For that, the student had been put on “indefinite” probation, restricted in visiting the campus after graduation, and endured the stigma of a sexual misconduct violation on this record ‒ a blot that threatened his ability to get a job after leaving school. It was not until late February of this year, after being threatened with a lawsuit, that MSU quietly agreed to clear the student’s record.
Most of the facts, chronicled by Bridge Magazine in January 2017, are not in dispute: The couple, who did not want their real names used, had met up on Memorial Day weekend in 2014 for a sexual rendezvous near the young woman’s home in Canton. A few hours after having sex, “Nathan” reached under her blouse and attempted to touch her breast. When he was rebuked, he removed his hand immediately. Both students agree that’s what happened.
To the female student, however, the incident represented an intimate touching without explicit consent – a betrayal, and potential violation of MSU sexual misconduct policy.
The student did not register a formal complaint about the touch with the university until 15 months later. By that time, the student, who wants to be known here as Matthew, was transitioning to becoming a man, taking male hormones, and expressing fear of confronting a former lover in a college men’s room.
The case drew attention in part for demonstrating how deeply MSU was willing to wade into students’ off-campus conduct, rendering judgment on nuanced sexual behavior even when school was in summer recess and the incident happened far from school grounds. The dispute was notable too for the findings of the university investigator, who judged a touch of the breast, within hours of consensual sex, to be a “severe and pervasive” instance of sexual harassment.
So too, the case highlighted the influence of Obama-era guidance under Title IX sex discrimination laws, offering a potent example to critics of how disciplinary rules intended to better protect students from the very real problem of campus sexual assault may have gone too far, trampling the due process rights of the accused.
And, finally, it showed an inattention to process: The MSU investigator’s findings were riddled with legal inconsistencies, including applying an incorrect and outdated policy, and persistently citing a 2015 date for the offense, that suggested the complaint had been filed soon after the breast touch ‒ rather than 15 months later.
“It was a mistake that was easily correctable. I just think it was a dysfunction,” says attorney Deborah Gordon, who was hired by the parents of the accused student to clear his record. “Maybe part and parcel of a bigger picture… I’d say it was an extreme over-correction. But even more than that, it was just bizarre.”
“What was really scary was ( MSU’s) inability, even when a lawyer got involved, to take a step back. Instead, they dug in.”
MSU officials would not comment on Nathan’s case or its settlement, citing student confidentiality provisions of federal law.
Asked about a recent review of MSU’s struggle to fairly and swiftly administer its sexual misconduct and assault policy, Rebecca Campbell, a psychology professor who headed an MSU workgroup to improve the process, said the group found inadequate staffing and communication to be serious issues.
“They simply did not have the staff to handle the volume of complaints,” she said. “We need more people, more trained people.”
In the Feb. 22 settlement, MSU expunged Nathan’s disciplinary record, and agreed to reimburse $10,000 in legal fees – a fraction of what the student’s parents said they paid Gordon for earlier appeals. No record of the disciplinary action remains on his academic record.
Matthew, the complainant, who graduated from MSU in December, told Bridge that he was not notified of MSU’S decision to exonerate Nathan. “I didn’t know anything about it,” he said.
Gordon, a civil rights lawyer, says MSU lawyers began negotiating with her last summer ‒ months before Engler was brought in to handle the Nassar crisis, and almost immediately after she sent MSU lawyers a draft of the federal lawsuit she said she planned to file.
By the time the Nathan case was settled, MSU, already under intense national media scrutiny, was trying to correct weaknesses within, hiring Husch Blackwell, an outside law firm, to investigate and review its policy on relationship violence and sexual misconduct. MSU released the final report on May 2.
Both Nathan, the accused, and Matthew, the accuser, had been frustrated and overwhelmed by the disciplinary process ‒ which included dense legal language and long delays in rulings. In its study, Husch Blackwell found MSU’s existing 48-page sexual misconduct policy to be the longest and most complex in the Big Ten, and one of the wordiest in the nation.
“None of the students we spoke with had … attempted to read through it,” the report found. Additionally, some of the most relevant information for students making or facing a complaint was buried in one of 14 appendices.
“Our challenge is to work within the federal guidelines to create a process that is compliant and clear and transparent,” said Campbell, the psychology professor who worked to improve the process for handling complaints of sexual assault at MSU (and performed similar work with police departments in Houston and Detroit). That challenge is especially difficult because Title IX and the federal legal landscape governing that law have undergone tectonic shifts for years.
Since the Obama administration’s April 4, 2011 letter to colleges and universities creating a lower, preponderance of evidence standard in sexual misconduct cases, courts and colleges have struggled to adjust. Under the current Education Secretary, Betsy DeVos, the Department of Education has rescinded that policy, creating guidelines that put a greater burden on complainants to prove their case.
MSU recently announced a re-named Office for Civil Rights and Title IX Education, and a job search for 12 new positions in the office, including a director, investigator, case manager, crisis counselor and others.
New, better-staffed, and more thoughtful processes may help future students and faculty better adjudicate sexual assault cases. Nathan and Matthew say they were both served poorly by a confusing, disorganized and unreceptive process that sapped their confidence in their university, while taking a toll on their mental health.
Matthew, who took comfort in an early MSU decision to ban Nathan from making any contact with him, feels a loss of formal protection.
Nathan’s mother looks back on an expensive ordeal that hurt her son’s grades, his self-confidence and his “entire senior year. “He will never get that time back,” she said.