William Forsyth, the special counsel working with the Michigan Attorney General in investigating how Michigan State handled the sexual abuse allegations involving convicted sex offender Dr. Larry Nassar, has issued an interim report. That report concludes that there was and is a “culture” problem at Michigan State that continues as evidenced by the conduct of Michigan State during the investigation: “(1) issuing misleading public statements, (2) drowning investigators in irrelevant documents, (3) waging needless battles over pertinent documents, and (4) asserting attorney/client privilege even when it did not apply. Mr. Forsyth added, “These actions warrant extended discussion because they highlight a common thread we encountered throughout the investigation into how the University handled allegations against Nassar. Both then and now, MSU has fostered a culture of indifference toward sexual assault, motivated by its desire to protect its reputation.”
Michigan State has responded through a spokesperson noting the university has been “very cooperative,” and that it has a “right” to assert its attorney/client privilege. According to the report, university lawyers accompanied all employees to their interviews with the special counsel.
One of the problems with this investigation is that there are still criminal charges pending that the Michigan Attorney General’s Office is handling, including against the former president of the University, a former dean, and the former gymnastics coach. ‘Tis a fine ethical line to walk to have the same office conducting a public investigation as those defendants prepare for their trials. Mr. Forsyth admitted as much, noting that he could not issue a final report as long as those charges are pending. In the Penn State Sandusky case, Penn State hired a private attorney (former FBI director Louis Freeh) to conduct an investigation, thus freeing him to release a full report and conclusions apart from what are still the pending final dispositions of cases against administrators there. Michigan State did hire independent counsel to investigate the Nassar sexual abuses, however, the report was one that prepared the university for defending itself in anticipation of litigation.
While Michigan State has made process reforms on its investigation processes for allegations of sexual abuse, Mr. Forsyth is correct. The tone at the top still does not signal the critical need for transparency and truth. In short, there is a difference between legal posturing and ethical conduct. Michigan State is still in the legal Kabuki dance mode. True reform comes when the mask and fancy footwork are dropped.