Lobbyists Warn Colleges That Participating in Sexual-Assault Survey Could Make Them Look Bad

“What will play well on TV?” lawyers for the American Council on Education ask colleges.

National Journal
Sarah Mimms
June 5, 2014, 1 a.m.

A slideshow pro­duced for a ma­jor edu­ca­tion lob­by­ing group is warn­ing col­leges that par­ti­cip­at­ing in a con­gres­sion­al sur­vey on cam­pus sexu­al as­saults could give them bad press.

After Sen. Claire Mc­Caskill’s re­quests to see a copy of a we­bin­ar the Amer­ic­an Coun­cil on Edu­ca­tion sent out to its mem­bers early last month were re­peatedly re­buffed, ac­cord­ing to her of­fice, the doc­u­ment was leaked to an edu­ca­tion blog on Tues­day. Not long after In­side High­er Ed pub­lished the slides in full, ACE made a copy avail­able to Mc­Caskill’s of­fice. A rep­res­ent­at­ive for ACE said that Mc­Caskill’s of­fice made sev­er­al re­quests for dif­fer­ent pieces of in­form­a­tion about the we­bin­ar, be­fore they sent the copy to her of­fice.

The pub­lished slides lack con­text and are not ac­com­pan­ied by any text or a tran­script of what ACE of­fi­cials said to mem­ber schools, but the mes­sage is clear: Work too closely with Con­gress on this sur­vey, or any fu­ture in­vest­ig­a­tion, and it could come back to bite your in­sti­tu­tion. The group said Thursday that they did not have a tran­script or re­cord­ing of the call that ac­com­pan­ied the we­bin­ar with its mem­ber schools, but said it was not their in­ten­tion to dis­cour­age schools from par­ti­cip­at­ing in the sur­vey.

ACE rep­res­ents 1,800 two- and four-year col­leges and uni­versit­ies, ac­cord­ing to its web­site.

Mc­Caskill, who was one of the sen­at­ors lead­ing the push for new reg­u­la­tions to com­bat sexu­al as­saults in the mil­it­ary earli­er this year, launched the sur­vey ini­ti­at­ive in April. In or­der to get an idea of how wide­spread sexu­al as­saults are on col­lege cam­puses — one fre­quently cited sur­vey says that one in five wo­men will be raped dur­ing her col­lege ca­reer — Mc­Caskill has asked 350 uni­versit­ies to par­ti­cip­ate in a sur­vey that asks, among oth­er ques­tions, how many sexu­al-as­sault in­vest­ig­a­tions they’ve con­duc­ted in the last five years. (You can see a sample copy of the sur­vey here.)

Some of those schools — though ACE would not say how many or name them — par­ti­cip­ated in a we­bin­ar and call with the lob­by­ing group in early May. ACE says that they were try­ing to lay out the pro­cess and dif­fi­culties of a con­gres­sion­al in­vest­ig­a­tion, not warn schools against par­ti­cip­at­ing in the sur­vey.

But the slides in­clude the cau­tion: “Sur­veys provide fod­der for ad­di­tion­al [con­gres­sion­al] in­vest­ig­a­tion.”

They then go on to warn col­leges and uni­versit­ies that the po­ten­tial scope of a con­gres­sion­al in­quiry is es­sen­tially lim­it­less. In­vest­ig­a­tions con­duc­ted by Con­gress, they say, are polit­ic­ally mo­tiv­ated, char­ac­ter­ized by a “Wild West” ap­proach “without real rules,” sub­ject to leaks to the press, and lack­ing safe­guards for their sub­jects (in­clud­ing at­tor­ney-cli­ent priv­ilege and right of ap­peal). The doc­u­ments do not men­tion, however, that at­tor­ney-cli­ent-priv­ilege claims are hold­ing up the House in­vest­ig­a­tion in­to the scan­dal at the Vet­er­ans Af­fairs De­part­ment.

The slides also ad­vise schools that con­fid­en­ti­al­ity in the sur­vey and po­ten­tial in­vest­ig­a­tion pro­cess is not guar­an­teed, not­ing that mem­bers could hold press con­fer­ences on the pro­ceed­ings. It also ad­vises them to con­sider: “What will play well on TV?”

Mc­Caskill has told all 350 in­sti­tu­tions that the sur­vey will be com­pletely con­fid­en­tial and is not re­leas­ing any of the names of par­ti­cip­at­ing schools.

A Mc­Caskill spokes­wo­man told Na­tion­al Journ­al that some of the schools in­volved in the sur­vey re­por­ted that they felt they were “be­ing warned against co­oper­at­ing.” The sen­at­or’s of­fice is now point­ing to the ACE slides as the cul­prit, though they would not provide the names of any of the par­ti­cip­at­ing schools either.

“It was ab­so­lutely noth­ing we said to in­struct schools to not re­spond to the sur­vey. “¦ Non-co­oper­a­tion would have been a bad strategy,” Cov­ing­ton & Burl­ing part­ner Robert Kel­ner, whose firm pro­duced the slides, said Wed­nes­day.

Kel­ner and ACE gen­er­al coun­sel Ada Meloy both said that the odds of a school be­ing in­vest­ig­ated would go up sig­ni­fic­antly if they did not par­ti­cip­ate in the sur­vey. Kel­ner ad­ded that it would be “fool­ish” not to do so. But neither could say con­fid­ently that that mes­sage was con­veyed to schools on the call.

Kel­ner said that the as­sump­tion of the call was that schools would par­ti­cip­ate, but ad­ded that be­cause the call was for a broad vari­ety of schools, not a spe­cif­ic cli­ent, his firm would not have giv­en any ad­vice on the sur­vey one way or the oth­er. Cov­ing­ton & Burl­ing provided the con­tact in­form­a­tion for three of its at­tor­neys at the end of the slideshow for any schools con­cerned about the leg­al rami­fic­a­tions of an­swer­ing the sur­vey and re­spond­ing to fu­ture con­gres­sion­al in­quir­ies.

“We’d cer­tainly hope mov­ing for­ward that ACE will be more will­ing to work pro­duct­ively with us and its mem­ber in­sti­tu­tions to help com­bat sexu­al as­sault on our col­lege cam­puses,” Mc­Caskill spokes­wo­man Sarah Feld­man said in a state­ment.

Meloy said that her group is happy to con­tin­ue work­ing with Mc­Caskill on re­du­cing sexu­al as­saults on col­lege cam­puses. “We cer­tainly are aligned with her in that de­sire and we’ve giv­en her sev­er­al op­tions of op­por­tun­it­ies to get her mes­sage to our mem­ber or­gan­iz­a­tions,” Meloy said.

This post was up­dated at 6:45 p.m. Wed­nes­day with fur­ther com­ments from ACE and Cov­ing­ton & Burl­ing.

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