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
Add to Briefcase
See more stories about...
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.

What We're Following See More »
Republican Polling Shows Close Race
Roundup: National Polling Remains Inconsistent
10 hours ago

The national polls, once again, tell very different stories: Clinton leads by just one point in the IBD, Rasmussen, and LA Times tracking polls, while she shows a commanding 12 point lead in the ABC news poll and a smaller but sizable five point lead in the CNN poll. The Republican Remington Research Group released a slew of polls showing Trump up in Ohio, Nevada, and North Carolina, a tie in Florida, and Clinton leads in Pennsylvania, Wisconsin, and Virginia. However, an independent Siena poll shows Clinton up 7 in North Carolina, while a Monmouth poll shows Trump up one in Arizona

Colin Powell to Vote for Clinton
12 hours ago
Clinton Reaching Out to GOP Senators
17 hours ago

If you need a marker for how confident Hillary Clinton is at this point of the race, here's one: CNN's Jeff Zeleny reports "she's been talking to Republican senators, old allies and new, saying that she is willing to work with them and govern."

Trump Admits He’s Behind
17 hours ago
Ron Klain in Line to Be Clinton’s Chief of Staff?
17 hours ago

Sources tell CNN that longtime Democratic operative Ron Klain, who has been Vice President Biden's chief of staff, is "high on the list of prospects" to be chief of staff in a Clinton White House. "John Podesta, the campaign chairman, has signaled his interest in joining the Cabinet, perhaps as Energy secretary."


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.