What’s in a name? How Michigan State University’s Office of Institutional Equity fails to live up to its own.
It seems my story with Michigan State University’s (MSU) reporting processes will start where it ends — how MSU effectively undermined my claims of discrimination, harassment, and retaliation, against a well-known, tenured, full professor of Psychology. It would take a book to explain what I’ve been through between the abuse and the reporting. The purpose of this post isn’t to address either of those issues at length. Rather, the purpose of this post is to start my story exactly how it finished, documenting my last act advocating for institutional reform around Title VII and Title IX policy and procedure at MSU.
Equity is defined as being fair and impartial. The purpose of this post is to share the numerous issues presented to MSU’s OIE office which highlight concerns where MSU fails to live up to its own espoused principles. Particularly, when the Claimant has less power than the Respondent.
On November 6th, 2019, I had an in-person meeting with Rob Kent, the Interim Associate Vice President, Office for Civil Rights and Title IX Education and Compliance. In that meeting I walked through the following points, provided him with a physical copy of the below document, and followed-up in an email with an electronic version of the document. The fifteen points detailed below highlight areas I believe need immediate attention based on my experiences navigating MSU’s OIE office.
Meeting with Robert Kent
Interim Associate Vice President, Office for Civil Rights and Title IX Education and Compliance
9:30–10:30 am, November 6th, 2019
Overall Experiences
o My experience wasn’t just re-traumatizing, it also subjected me to new and additional institutional trauma.
o This experience was elongated due to OIE’s inability to follow their own proposed and espoused timelines.
o This process was burdensome and time-consuming, with the documents in my case (i.e., evidentiary documents found in the file, OIE reports, OIE report responses, OIE appeals, and relevant attachments) constituting thousands of pages.
o I would not, and in fact have not encouraged anyone to participate in an OIE investigation as a result of my own experience with the OIE office.
§ You will note that OIE recently opened up another retaliation investigation based on my reporting. I declined to participate in that investigation given my previous negative experiences.
(1) An acknowledgment of conflicts of interest, how they are assessed, and when and how a recusal would occur must be fully disclosed by OIE, early and often.
o Dr. Rebecca Campbell is the evaluator for the evaluation of the OIE office, the Chairperson of the RVSM Expert Advisory Workgroup (RVSM policy is subject to oversight by the OIE office), and presidential adviser on sexual misconduct issues.
§ My attorney argued that it was a conflict of interest that the evaluator of the OIE office also be listed as a witness, particularly that of a Respondent, in an OIE investigation. MSU disagreed there was a conflict of interest.
I am here today because I do not feel comfortable participating in the evaluation of the OIE office given that a witness for the Respondent in my OIE case is the evaluator with access to the raw data. OIE’s answer to this was a meeting with you, Robert Kent, to deliver my feedback directly.
o Dr. Rebecca Campbell is a former mentee, current colleague, and friend of the Respondent. As such, Dr. Rebecca Campbell was called as a witness for the Respondent.
o Dr. Rebecca Campbell was able to gain access to OIE’s preliminary report, even though OIE confirmed the preliminary report was only released to the Claimants and the Respondent.
o Dr. Rebecca Campbell contacted OIE after reading the preliminary report and was granted a second interview.
o Upon learning of this, I alerted OIE to the fact that no other witnesses in the investigation had access to the preliminary report and Dr. Rebecca Campbell was the only witness afforded a second interview.
o I requested that other witnesses be interviewed a second time. At a minimum, I requested that one particular witness, who was the other party to the conversation reported by Dr. Rebecca Campbell in the second interview, also be interviewed again. These requests were denied by OIE.
§ Clear language in OIE policy is needed about what constitutes a conflict of interest, how these conflicts are assessed, and how those involved may appropriately recuse themselves to ensure impartiality and neutrality by OIE.
(2) Clearer expectations and guidelines around privacy and confidentiality with documents submitted to OIE and OIE produced documents are needed.
o The Respondent provided both OIE’s preliminary report and OIE’s final report, unredacted, to a local reporter.
§ OIE should clearly and visibly state what is subject to FOIA.
· It should be further clarified what information will be redacted through a FOIA request.
§ It should be clarified what information provided to and/or produced by the OIE office is protected by FERPA.
§ It should be clarified which parties are permitted to share documents from the OIE file, the preliminary report, and the final report with and if this differs depending on the parties’ status as faculty, staff, or student.
(3) Clearer explanations around what constitutes the “preponderance of evidence” are needed.
o When I made allegations about statements made by the Respondent that a third party did not witness it was noted that my claims were “not corroborated”. However, when the Respondent made claims about statements that were not subject to a third party nor verified by the other party, they were not labeled as “not corroborated”.
§ While the standard is “more likely than not”, statements made by the Claimant and Respondent appear to not be weighted or presented equally.
(4) A clearer explanation around the burden of proof for a finding of retaliation is needed.
o The burden of proof, as it is currently stated, is unreasonably high.
§ The retaliation language states, “There must be a showing that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
§ On multiple occasions, the allegations of retaliation I made were dismissed because I continued to participate in the protected activity (i.e. the OIE investigation). Claimants should be warned that continuing to participate in a protected activity after alleging retaliation will result in their allegations being dismissed.
· This policy implies that to receive a finding regarding retaliation, the Claimant must discontinue participation in the OIE process which would prevent them from providing evidence and feedback to investigators and as such weaken their initial complaint.
(5) There is a lack of coordination among the OIE and other offices (Research Integrity Office — RIO, Academic Human Resources — AHR, Human Resources — HR, Associate Provost of Undergraduate Education- APUE, Graduate School- GS, Internal Review Board — IRB, Office of General Counsel — OGC, Contract and Grant Administration — CGA, Institutional Animal Care and Use Committee — IACUC, and Colleges/Departments).
o OIE had information about/statements about/from a witness that was also involved in a RIO investigation. This information was not shared and hampered any further investigation of retaliation that could have been conducted, related to claims of research misconduct, by the RIO.
o OIE also had information that may be relevant to AHR, HR, APUE, GS, IRG, OGC, CGA, and the Colleges. However, on several occasions, it became clear that relevant information was not being provided to these entities.
§ Certain information may not be relevant to OIE but is relevant to other offices. There should be a clear system for sharing information among these offices. It should also be transparent to the parties who information is being shared with to ensure transparency.
(6) Clearer communication and description about interim measures is needed:
o (1) What can be offered as interim measures:
§ On multiple occasions, I asked for interim measures that OIE stated could not be granted. When I asked, on multiple occasions, what interim measures OIE could offer I did not receive a response.
o (2) Who can establish interim measures:
§ There was clear confusion throughout my investigation who could offer interim measures. The Psychology Department frequently stated this was within OIE’s purview and OIE frequently stated this was within the Psychology Department’s purview.
o (3) Who can enforce interim measures:
§ The no-contact directive in my case was not established by OIE. It was established by the Psychology Department after OIE informed me that they no longer offered no-contact directives and instead left these decisions to departments. As such, my no-contact directive was unenforceable. The College of Social Science indicated there is no precedent for enforcing these department-level directives and as such nothing could be done about violations.
· It is critical that policy and procedure around interim measures be clarified and made available to the parties and the relevant University offices.
(7) There is no option for witnesses to participate confidentially in investigations.
o This option does exist for Complainants and should be offered to witnesses.
o This is particularly critical in situations such as mine given multiple witnesses stated fearing retaliation from the Respondent if they reported. One even indicated the Respondent coerced them out of participating which could have impacted the outcome of the investigation.
§ There should be a safer mechanism for witnesses to provide their statements. Particularly, in light of the issues with pursuing a retaliation investigation.
(8) There are clear differences between Anti-Discrimination Policy — ADP/Relationship Violence and Sexual Misconduct Policy — RVSM cases which undermines the basic principle of OIE (i.e. equity).
o There are advocates made available for RVSM cases, but not ADP cases.
o There are more resources offered for those with RVSM cases than ADP cases (i.e. institutional and community resources).
§ Advocates should be provided to all navigating the OIE office and access/connection to resources (both internal and community based) should be mirrored across policies.
(9) Transparency around metrics of the OIE office should be publicized, particularly as ADP cases do not get reported under the Cleary Act.
o The following should be publicly available:
§ The number and type of complaints brought forward to the OIE office.
§ The number and type of cases where there is sufficient evidence for investigation by the OIE office.
§ The number and type of cases where there are findings of policy violations by the OIE office.
(10) The guidelines for file review, a right afforded to students under FERPA, should be clarified and publicly accessible.
o My file review highlights the following issues:
§ OIE attempted to enforce a time limit for my file review which does not appear in FERPA guidelines.
§ OIE did not allow me to:
· (1) Receive either electronic or paper copies of my file even though they are considered part of my file under FERPA.
· (2) Take pictures of the documents included in my file which caused an unnecessary burden with, at times, up to four people transcribing the documents.
§ OIE did not seem to have a clear policy or procedure for redaction as the first time I viewed my file there was minimal redaction and the second time I reviewed my file entire pages were redacted.
· There should be clear alignment with FERPA and any practices which further burden the student should be abandoned to ensure vulnerable parties are not subject to undue harm.
(11) There is no available information on decision making around combining cases.
o My case was combined with another Claimant without any explanation to me or permission from me.
§ A clear OIE policy around how the decision is made to combine cases is needed, as well as avenues for Claimants to contest this decision.
(12) There is a lack of trauma-informed interviewing techniques used by OIE investigators.
o I was not aware that all information must be presented to the investigator in the initial meeting. As such, when I raised information at a later time, which is common in trauma victims, these pieces of evidence were noted as “for the first time” as if to indicate that it was odd that I had not provided the information originally.
o I stated, “the incidents were so pervasive (weekly) that it would be impossible to recount every single event.”
o OIE responded stating,” other than as specifically set forth above, no information or other evidence was presented or discovered showing the dates, comments or other information describing the manner in which Respondent “berated” Claimant Clark about her disability…”
§ It would be illogical and is otherwise empirically supported (ironically, by Dr. Rebecca Campbell), that victims who experience trauma may experience disruptions in memory which prevent them from recalling specific details or recalling all of the details at once.
§ As a Claimant straddling an OIE investigation by internal investigators, and one handled by Miller Canfield, the differences in treatment and conduct on these issues are stark.
· While MSU’s internal investigator often failed to respond to emails or provide timely updates, without fail Miller Canfield has provided weekly updates.
· Additionally, the tone of the initial interview with Miller Canfield was one of compassion and understanding, particularly around issues related to memory.
o There is a clear need, given the nature of OIE allegations, for investigators to be understanding of and responsive to trauma to help elicit important information and avoid undue harm/trauma to the parties.
(13) Clearer and more accurate procedural guidelines around the OIE process are needed.
o It was not clear to me that all information should be provided in the initial interview and that there would not be subsequent interviews to raise concerns and ask questions.
§ There should be clear guidance on what to expect regarding initial interviews (and, the lack of subsequent interviews).
o It was not clear to me that there would be no recording or third party notetaker making the note-taking by the investigator, who was also asking the questions, susceptible to, at times critical, typos.
§ There should be clearer information on how information is gathered (i.e. note-taking practices) so the Claimant can provide their statements in writing to minimize typos.
o The timeline provided by OIE was not accurate.
§ OIE documents should be updated to reflect the average time from the initial interview to the preliminary report and final report.
(14) More training on the academic context is needed for OIE investigators.
o In my case, many of the issues of discrimination alleged were around milestone projects and publications.
§ I alleged delaying of my dissertation proposal defense.
§ OIE misunderstood this in the preliminary report and implied I was referencing my dissertation defense.
§ I submitted corrections to the preliminary report, which were not incorporated, meaning the final report again implied I was talking about my dissertation defense rather than my dissertation proposal defense.
· There should be clear training for investigators, particularly as they are investigating within an academic institution, on expectations and nuances around academic products such as theses, dissertations, and publications.
· Alternatively, there should be someone familiar with the academic process who can be consulted to resolve inconsistencies, answer questions, etc.
(15) The appeal process, as designed, does not mimic any appeal process external to the University.
o Claimants and Respondents are allowed to appeal based on alleged procedural error and the claim that the finding is arbitrary and capricious.
o An appeal is sent back to the same investigator.
§ Sending an appeal of a finding back to the same OIE investigator who issued the finding does not allow for an independent checks and balances of the information, procedures, and decisions.
o An appeal is sent to the Respondent.
§ It is unclear why an appeal of a finding is sent back to the other party when the appeal is based on procedural error or the fact that a finding is arbitrary and capricious given that those are direct appeals of how the case was handled by OIE.
· It further does not make sense that the Respondent would be allowed to respond at this stage given the appeal is based on the handling of the case by the OIE office. This only serves to give the Respondent another opportunity to traumatize the party.
o The appeal process should be re-examined to better reflect common appeal processes and minimize harm the parties are subjected too.
