Dec. 30 2015 09:45 AM

Supreme Court rejects MSU's assertion of secrecy

The Michigan Supreme Court, usually so protective of business, hostile to unions and deferential to powerful interests, actually ruled in favor of openness and transparency last week by ordering Michigan State University to release the names of football and basketball athletes identified in crime-related incident reports.

The university had denied a Freedom of Information Act request by the sports network ESPN for information about athletes accused of crimes. It sought the information as part of a broad investigation of favorable treatment given athletes.

MSU responded to ESPN's request by providing incident reports but redacted names, citing the privacy exemptions it claimed were allowed under FOIA. The university is tenacious in protecting its hundred-million-dollar athletic program and its athletes, who like other students at times run afoul of the law.

In this case, the courts have consistently and firmly challenged MSU's embrace of secrecy.

Ingham County Circuit Judge Clinton Canady's initial ruling has proven correct. He ordered the university to release the names of student athlete suspects but allowed the names of victims to remain private.

Dissatisfied with this compromise, MSU took the matter to the Michigan Court of Appeals, which agreed with Canady, stating that the release of suspect names and redaction of victim IDs balanced the public's interest in knowing how the university's police handle investigations versus protecting student privacy rights.

Still not satisfied, MSU appealed to the Supreme Court, which declined to intervene and lifted the stay on Canady's initial ruling. It was a 6-1 decision, the lone no vote offered by Justice Stephen Markman, who ignored the well documented special treatment afforded college athletes by their schools and law enforcement agencies.

To investigate athlete arrests, prosecutions and convictions, ESPN requested records from Auburn, Florida, Florida State, Michigan State, Missouri, Notre Dame, Oklahoma State, Oregon State, Texas A&M and Wisconsin.

Here is what it found:

“The examination of more than 2,000 documents shows that athletes from the 10 schools mainly benefited from the confluence of factors that can be reality at major sports programs: the near-immediate access to high-profile attorneys, the intimidation that is felt by witnesses who accuse athletes and the higher bar some criminal justice officials feel needs to be met in high-profile cases.”

The project identified athletes at University of Florida and Florida State University as unusually entangled by legal difficulties.

“Florida, had the most athletes named as suspects — 80 in more than 100 crimes at Florida. Yet the athletes never faced charges, had charges against them dropped or were not prosecuted 56 percent of the time. When Outside the Lines examined a comparison set of cases involving college-age males in Gainesville, 28 percent of the crimes ended either without a record of charges being filed or by charges eventually being dropped.”

Markman in his whinny dissent discounts the different status of athletes and the general student population, which was, in fact, the premise of the ESPN investigation.

ESPN's separate report on MSU was constrained by the school's refusal to release information about it's athletes. Based on incomplete dates, ESPN found that:

“ … analysis comparing cases involving Michigan State athletes and a sample of cases involving college-age males in East Lansing showed no substantial overall difference in how, or whether, the cases were prosecuted.” But it added, “Several incidents from Michigan State campus police were not able to be analyzed, though, due to an ongoing dispute involving ESPN’s public records requests pending in Michigan courts.”

Based on incomplete reporting for 2009 to 2014, ESPN found that there were criminal incidents related to the football and basketball teams, involving 44 athletes, 10 of them more than once. This represented 15 percent of the team rosters. Of all cases, 62 percent were dropped or not prosecuted.

Said the ESPN report: “A sample of cases involving college-age males in East Lansing showed no substantial overall difference in how, or whether, the cases were prosecuted.”

MSU actually did a disservice to its athletes by attempting to hide its incident reports. Its football and basketball programs are run by no-nonsense coaches Mark Dantonio for football and Tom Izzo for basketball. Presumably there is nothing to hide with either program.

The Supreme Court decision also nudges MSU, along with Wayne State University and the University of Michigan, closer to the accountability standards applied to other government agencies.

As Markman wrote in his dissent, “The Michigan Constitution confers a unique constitutional status on our public universities … . Accordingly, a public university such as [the] defendant exercises a fair amount of independence and control over [its] day-today operations, which is presumably designed to secure its overall educational mission.”

Universities have used this constitutional provision to avoid FOIA and Open Meeting accountability. That the majority of the court ignored this dodge is encouraging. Our universities are too important to hide their workings from the public.