Paula Lavigne is a Liar, Part 1

This is my partial response to Paula Lavigne and ESPN’s recently published / broadcast Outside the Lines  (“OTL”) article “Michigan State secrets extend far beyond Larry Nassar case.”

Unlike Lavigne and ESPN, I will present evidence showing that Lavigne and ESPN intentionally omitted crucial facts and necessary context in order to intentionally present a false and misleading narrative in a reckless and irresponsible attempt to weave Larry Nassar’s atrocities with incidents involving the MSU men’s basketball and football teams.

It is my opinion — based on the facts presented below — that Paula Lavigne is a liar. It is also my opinion — based on the facts presented below — that Paula Lavigne is unethical.

There are two issues: 1) Lavigne and ESPN’s recently published and broadcast OTL on Michigan State University (“MSU”) is the result of very hostile, ongoing litigation over ESPN’s Freedom Of Information Act (“FOIA”) requests and philosophical differences concerning student-athlete(s) privacy and records disclosure; and 2) Lavigne and ESPN’s intentional omissions and misrepresentations, sensationalistic and defaming “reporting” was intended to defame Michigan State University, Coaches Tom Izzo and Mark Dantonio, and the basketball and football programs, as well as Travis Walton, Keith Appling, and Adreian Payne.

This is my opinion, and I will prove it —

Specifically, I will focus on the following:

• Lavigne and ESPN reported on the suspension and later arrest of four former MSU football players charged with sexual assault in 2017; however, she and ESPN failed to report the existence of the Jones Day Report, or its findings.

• Lavigne and ESPN deliberately omitted / failed to report that Ingham County Prosecutor Stuart J. Dunnings concluded that no crime had been committed by then-MSU basketball players Keith Appling and Adreian Payne in 2010.

• Lavigne and ESPN deliberately omitted / failed to report that the Department of Education, Office of Civil Rights  (“OCR”) adopted the findings of MSU’s privately retained investigator into the Appling / Payne matter that concluded, using a preponderance of the evidence standard of proof, that no sexual assault occurred.

• Lavigne and ESPN deliberately misreported on Twitter that the disposition of former MSU basketball player Travis Walton’s 2010 littering plea (agreement) stemming from an assault and battery case in 54B District Court was uncommon; insinuating that Walton — and other MSU athletes — received preferential treatment in East Lansing courts, thereby personally damaging former East Lansing Assistant City Attorney David Meyers.

• Lavigne and ESPN presented an inaccurate, misleading summary of past and ongoing litigation over privacy issues involving MSU student-athletes; more specifically, the 2017 lawsuit in which MSU sought declaratory relief because the Ingham County Prosecutor’s Office instructed MSU not to release the unredacted documents to ESPN during an ongoing criminal investigation.

• Lavigne and ESPN despicably published and broadcast the name of an MSU basketball player currently under investigation for a misdemeanor — the student-athlete has not been charged with a crime.

—————————

I. Coach Dantonio’s June 6, 2017 Statement / Press Conference / Jones Day Report 

June 6, 2017 Press Conference

On June 6, 2017 MSU and Mark Dantonio held a press conference to address: 1) An ongoing sexual assault investigation involving three previously suspended MSU football players; and 2) The findings in the June 5, 2017 Jones Day report. Jones Day Report, June 2017, https://msu.edu/ourcommitment/_assets/files/Jones-Day-Report-June-5-2017.pdf (Last visited February 15, 2018).

Previously, on February 9, 2017, MSU announced that three football players were suspended and that an investigation had begun. Detroit Free Press https://www.freep.com/story/sports/college/michigan-state/spartans/2017/02/09/msu-football-sexual-assault-investigation/97716134/ (Last visited February 15, 2018).

Immediately after MSU announced the three player suspensions, speculation in the media and social media intensified — who were the players? Dantonio and MSU, coming off an unexpected and frustrating 3 – 9 season, suddenly faced unprecedented adversity both on and off the field. The rumors swirled… not just about the suspended players, but also Dantonio’s future leading the program.

The next day, on February 10, 2017, Lavigne filed a FOIA request for various records relating to the sexual assault allegations. (Complaint for Declaratory Relief, Case No. 17-000114-MZ, at 2). Because there was an open criminal investigation with the Ingham County Prosecutor, MSU refused to provide all the records that Lavigne requested.

In the months following the players’ suspension, Dantonio faced ongoing media scrutiny because he refused to release the names of the suspended football players while the criminal investigation was ongoing. In fact, the Ingham County Prosecutor’s Office contacted MSU and specifically asked MSU not to release the names of the three players because they believed it would infringe on the potential defendants’ rights to a fair trial.

Detroit Free Press columnist Jeff Seidel provided the following in a March 29, 2017 column addressing the investigation and the upcoming MSU Spring (football) Game:

“Who is missing? Who is dressed but not playing?

Three players and a staff member will miss Saturday’s game because they have been suspended for circumstances involving an alleged sexual assault.

Who are the players involved in the sexual assault? MSU coach Mark Dantonio has declined to name them, which is understandable. The investigation is still ongoing, and no charges have been filed.” (Emphasis added)

Jeff Seidel, Sexual assault case complicates Michigan State’s upcoming spring game, https://www.freep.com/story/sports/columnists/jeff-seidel/2017/03/29/michigan-state-football-mark-dantonio/99740878/ (Last visited February 14, 2018).

Even more troubling, another MSU football player, Auston Robertson, was charged with sexual assault in April 2017. Upon learning of the alleged sexual assault, MSU immediately asked Jones Day expand the scope of their investigation to include the Robertson allegations.

Unlike the three previously suspended and yet-unnamed players, Auston Robertson was charged on April 21, 2017 and immediately dismissed from the football team.

The June 6, 2017 press conference was called minutes after the Ingham County Prosecutor’s Office charged Josh King, Donnie Corley, and Demetric Vance with criminal sexual conduct charges. Reuters, https://www.reuters.com/article/us-michigan-football-assault/michigan-state-football-players-charged-with-sexual-assault-idUSKBN18X2LJ (Last visited February 5, 2018). During the press conference, Dantonio identified the players, stated that the players were dismissed from the team effective immediately, and invited the media to ask questions.

Dantonio prior to answering questions: “The moment has arrived now, we’ve endured the process. Now we are here to answer questions on this, and this is why we came today, this is the reason we’re here today, to talk about this subject matter.”

Dantonio was almost immediately asked about Auston Robertson:

Question 2: 

“Revisiting Austin Robertson’s situation can you go through the process that you guys had in vetting him at first and how he ended up on campus and what precautions you took with him?”

Dantonio:

“First of all I think that that’s a long answer to your question. Secondly, I dismissed Austin Robertson from this football team. It was done very quickly. I talked about that the last time I had a statement made so I’m going to stay with the course of this conversations for me today need to be centered on what’s gone on today.”

Sternly, Dantonio made it clear that he was only addressing the criminal charges against King, Corley and Vance, and would not discuss other cases or issues involving other members of the football team. A few questions later, Chris Solari of the Detroit Free Press asked:

Chris Solari:

“Mark, over the course of, I guess, about 15, 16 years, or really throughout you entire coaching career, how have you handled these types of situations when sexual assault cases come up, and has there been changes in the past years with more emphasis around the campus on that?”

Dantonio:

“Well, this is a bit, this is new ground for us. You know we’ve been here for eleven years and it’s not happened previously so this is a bit of a learning experience.”

Dantonio affirmed that the players’ arrest for criminal sexual assault and stated that it was new ground for the program, which is accurate. https://www.youtube.com/watch?time_continue=62&v=Q4SPsmSb8DU (Last visited February 16, 2018).

The facts support Dantonio’s statement. There is no other interpretation.

Jones Day Report

Lavigne and ESPN — without any evidence — claimed Dantonio mishandled sexual assault allegations: “[o]n Friday evening (January 26, 2018), Dantonio said (Lavigne and ESPN’s) accusations about him and his program mishandling sexual assault allegations, including dealing with one complaint directly, are ‘completely false.’”

MSU retained Jones Day, an elite AmLaw 50 firm, to conduct an independent investigation into the football program’s institutional response to the sexual assault allegations against King, Corley, and Vance. The investigation was later expanded to include Robertson. MSU also retained Rebecca Veidlinger to conduct an independent Title IX investigation.

Jones Day found that Dantonio took immediate steps to report both sexual assault reports and that he took no actions to impede or interfere with any subsequent investigations into the players. The Report concluded that:

“Our investigation found no evidence that Dantonio did anything to impede, obstruct, or interfere with Office of Institutional Equity’s (“OIE”) investigation of the incident.

Similarly, Dantonio promptly and fully reported the information he learned from a player related to the April 2017 incident. Our investigation found no evidence that Dantonio took any actions to impede or interfere with the subsequent investigation of that incident. To the contrary, Dantonio immediately conveyed the information regarding an alleged assault to MSU PD so it could open an investigation, and he encouraged the player who reported the assault to cooperate with authorities.

Dantonio’s prompt reports to University authorities (Office of Institutional Equity and/or MSU PD), coupled with the extensive training the football team does on the RVSM policy, demonstrated his commitment to comply with the University’s policies regarding sexual misconduct.”

Jones Day report, at 12.
The Jones Day report also found that the football program is proactive in RVSM (Relationship Violence & Sexual Misconduct, https://ora.msu.edu/RVSM) training for players, coaches, and staff, and that the program received five RVSM trainings in the last two years, as well as other trainings focusing on academics, leadership, substance abuse, campus behavior, and sex. Freshman football players participate in specialized weekly trainings. Id., at 6.

The Jones Day Report is significant for a number of reasons. First, the engagement and scope of work  highlights MSU’s commitment to appropriately responding to sexual assault allegations, and that the University is holding the football program accountable; Second, the report’s findings — referenced above — show that Dantonio acted decisively and in accordance with MSU policies; and Finally, the report provides examples of the effectiveness of RVSM training; two football players promptly reported suspected sexual assaults involving their teammates to Dantonio, who, in response, immediately contacted MSU PD and OIE.

Astonishingly, Lavigne intentionally excludes the Jones Day Report from her article. Obviously Lavigne was aware of its existence because she discuses Dantonio’s June 6, 2017 press conference. So why isn’t the report referenced at all?

Another important question is how has Dantonio allegedly “mishandled” sexual assault investigations? There is no evidence at all that Dantonio mishandled a sexual assault investigation. To the contrary, the Jones Day Report proves that Dantonio in fact did handle the King, Corley, Vance, and Robertson cases decisively and within University policy.

How does Lavigne explain its omission? She doesn’t — she doesn’t even acknowledge it.

Furthermore, even if we accept Lavigne’s prevarications  — which we do not — that Dantonio may have “mishandled” sexual assault investigation in the past, the Jones Day Report evidences that effective program-wide remedial measures were successfully implemented. Its inclusion is necessary to provide the audience with an honest depiction of the program’s efforts to combat sexual assault and relationship violence.

In my opinion, Lavigne’s intentional omission is unethical, dishonest, and untruthful.

Omissions are lies.

On a lighter note, I decided to play investigative reporter and drafted a paragraph that should have been included in Lavigne’s article, based on, you know, the actual facts:

“Dantonio was also present to answer questions about the Jones Day Report. MSU, in response to the sexual assault allegations, hired Jones Day, one the country’s largest and top-ranked law firms, to conduct an independent investigation into the football program’s institutional response to the sexual assault allegations. The Jones Day Report found that Dantonio handled the investigation appropriately and complied with University policy. The report can be found here: (Hyperlink to Jones Day Report on MSU’s website).” 

II. Travis Walton Incident

Lavigne inexplicably dedicates considerable time discussing an alleged assault incident involving Travis Walton (“Walton”) and an MSU student, Ashley Thompson (“Thompson”), at an East Lansing bar in the early morning hours of January 16, 2010. Thompson claims that Walton struck her in the bar. At the time, Walton, a former MSU basketball player, was taking classes at MSU and was an unpaid volunteer working with the basketball team.

The East Lansing Police Department charged Walton with misdemeanor assault and battery and the case was submitted to the East Lansing City Attorney. Walton pled not guilty at his arraignment and eventually pled guilty to littering a few months later. Lavigne reports:

“David Meyers, the former city attorney who handled Thompson’s case, told Outside the Lines he agreed to a plea deal with Walton after his defense attorney provided witness statements that contradicted Thompson’s version of events. He says Walton’s status as a former basketball player and current assistant coach did not figure into his decision. Meyers, who is no longer with the office, says he did not recall further details. The case file is no longer available  from the city attorney’s office.

Thompson says someone in the city attorney’s office told her not to talk to the media or to anyone at Michigan State about the incident, so she did not report it to university officials. Meyers says he doesn’t recall ever having talked to Thompson and that he never discouraged victims from discussing their case with others.”

First, the case file is no longer available because it is an eight year old case. Municipal prosecutors are only required to keep the records for one year after the final disposition of the case. (See Item Number 201, Misdemeanor Cases, General Retention Schedule #19, Prosecuting Attorneys, http://www.michigan.gov/documents/hal/mhc_rm_gs19_195723_7.pdf). There is nothing sinister about the file being unavailable from the prosecutor’s office.

Second, Walton’s plea deal to littering has been discussed ad nauseam in the media and on Twitter. In response to his portrayal in Lavigne’s article, David Meyers has released numerous statements stating that the Walton’s plea deal was normal. Defiantly, on February 4, 2018, Lavigne fired back on Twitter: “[o]ur story only states facts…[w]e were told by a current city official that it was not common in an assault case to plead to a civil infraction.”

Lavigne lied, again.

Lavigne’s “our story only states facts” is a lie — and until she identifies the  “current city official” or provides actual data supporting her statement regarding Walton’s plea deal, which David Meyers did, then I will continue to believe that Lavigne is a pathological liar incapable of acknowledging that she is wrong.

Lavigne earned a bachelor’s degree in journalism from the University of Nebraska, Lincoln, and an MBA from Creighton University. She describes herself as a “specialist in data journalism and statistics, (data acquisition, cleaning, and analyzing)…”  who “trains colleagues on database and investigative reporting techniques, including making public record requests and negotiating for records and data.” https://www.linkedin.com/in/paulalavigneespn/ (Last viewed February 15, 2018).

So let’s get this straight — Paula Lavigne — the data journalism and statistics specialist who trains colleagues on public records requests — based her entire prosecutorial misconduct insinuation (discussed below), case disposition abnormality, implicit conspiratorial and alleged preferential treatment to a former MSU athlete on the word of a city official whom she refuses to identify?

Huh?

Is this really happening?

There’s more…

David Meyers states that:

“ESPN and Paula Lavigne should stay away from making insinuations of legal misconduct in their ‘investigative journalism’ pieces if they do not have a better grasp of the legal system than my four year old son.”

Meyers Statement at 2.

Here’s the problem with that statement — Lavigne and ESPN do have a better grasp of the legal system. ESPN previously sued MSU on this very issue — obtaining records — and Lavigne, along with Dan Murphy, signed the verifications of counterclaim in the most recent lawsuit between MSU and ESPN regarding FOIA requests. Defendant ESPN, Inc.’s Answer to Complaint, Affirmative Defenses, and Counterclaim, Verification of Counterclaim, Case No. 17-000114-MZ.

All Lavigne had to do was stroll over to the East Lansing court and she could have pulled the files herself. Yes, it’s that simple! You walk up to the clerk, and say “Hi, I’d like to know how many assault and battery cases there were from 2014 – 2017. Can you please pull those files for me?”

Lavigne is highly educated and quite sophisticated — so either she knew that Walton’s case disposition was common and intentionally failed to report it accurately in her Twitter responses, or she (negligently) did not even bother to investigate assault and battery case dispositions at 54B District Court and instead forced the reader to interpret malfeasance in the way she described the disposition based on Thompson’s reaction:

“On April 21, 2010, almost three weeks after the Spartans lost to Butler in the Final Four, Walton’s assault and battery case was dismissed, and he instead pleaded guilty to a civil infraction for littering.

“The prosecuting attorney called and told me, and I was absolutely livid” Thompson says. “I was heartbroken. It was just very upsetting that someone with a little bit of pull around the school, because he was a basketball star or assistant coach, could kind of just do whatever he wanted and kind of get away with it.”

According to Meyers, 34 of the 52 assault and battery cases resulted in a conditional civil infraction  (typically littering – same as Walton), five resulted in outright dismissals, four resulted in dismissals as part of another plea agreement, eight resulted in guilty or no contest pleas, and one resulted in a guilty verdict following trial.

In an interview with the Detroit Free Press, East Lansing City Attorney Thomas Yeadon confirmed: “They’re extremely common.” Yeadon went on to say that “Most of our cases are dealt down to littering. We look at assault cases a little more closely than we would a run-of-the-mill disorderly conduct. Oftentimes in assault cases, there are differing versions of who did what to whom. But that’s still a fairly common plea agreement.” https://www.freep.com/story/sports/college/michigan-state/spartans/2018/02/12/attorney-travis-waltons-plea-agreement-consistent-michigans-other-college-towns/331816002/ (Last visited February 15, 2017).

Ironically, Thompson had an operating while intoxicated reduced to a civil traffic infraction in 2009 in the same court. See CASE NO. 09-2155X D01 OI.

III. Keith Appling / Adreian Payne 

Keith Appling and Adreian Payne are two former MSU basketball players who were accused of sexually assaulting a fellow student in 2010. Three separate investigations resulted in findings that no sexual assault occurred. The alleged incident was widely publicized in the media at the time.

Lavigne dedicated twenty paragraphs to the Appling / Payne case. So why is a widely publicized eight year old disproven sexual assault included in ESPN’s article about alleged “Michigan State secrets?”

Two reasons: 1) Sensationalism — Defame Appling, Payne, Izzo, and MSU basketball; and 2) To “bridge” two other separate and completely unrelated Title IX complaints, one against Nassar, to the MSU Athletic Department.

For context, here are burdens of proof:

Highest standard: Beyond a reasonable doubt. The burden of proof in a criminal case is beyond a reasonable doubt. See https://www.nolo.com/dictionary/reasonable-doubt-term.html (Last visited February 16, 2018).

Medium standard: There are a number of lower burdens of proof  placed in non-criminal cases. For example, clear and convincing evidence, the so-called “medium level of burden of proof” is typically used in civil case.

Lower standard: An even lower burden of proof is the preponderance of the evidence. Further guidance on the standards: https://www.law.cornell.edu/wex/burden_of_proof (Last visited February 16, 2018).

Criminal Investigation

Lavigne selectively pecked through the 70 plus page police report and pulled snippets that included the most sensationalistic and shocking language: vaginally, anally, orally, “I don’t want it”, “stop,” etc. Even more reprehensibly, she framed the following as Payne’s “confession”:

“According to a police report, Payne told officers that he could “understand how she would feel that she was not free to leave.”

Payne never said that he could “understand how she would feel that she was not free to leave.” Detective Kennedy used those words during the then-18 year old’s voluntary interrogation. For proper context, I suggest reading the entire report, which can be found here: https://www.isportsweb.com/wp-content/uploads//2018/02/Press-Release-SJD.pdf (Last visited February 15, 2018).

The alleged incident occurred on August 30, 2010. Payne, without counsel, voluntarily participated in the above-referenced interrogation. On October 10, 2010, Ingham County Prosecuting Attorney Stuart J. Dunnings III issued a statement explaining his reasoning for declining to prosecute Appling and Payne. In his statement, Dunnings provided: “[y]ou can see from the transcript of the interview with the man (Payne) that he did not, in fact, corroborate the facts necessary to substantiate a criminal sexual assault charge.”

Dunnings went on to state that “[b]ased on our review of all the material, including the police report, actual interviews…our office reached the conclusion that no crime had been committed.”

Let that sink in — a prosecutor concluded that no crime had been committed.

In a written statement to the press.

Lavigne impishly notes that “[n]o charges were filed in this case.”

Her statement is intentionally misleading — no charges were filed in this case because the prosecutor concluded that no crime was committed. In the twenty paragraphs dedicated to “reporting” the Appling / Payne incident, Lavigne intentionally omits the most important fact: Dunnings’ concluded that no crime had been committed.

In the next sentence, Lavigne disingenuously attempts to manufacture a conspiratorial link between Deputy Prosecutor Debra Rousseau Martinez and the prosecution declination by slyly mentioning that Martinez now works in MSU’s Title IX office: “The assistant prosecutor, Martinez, now works for Michigan State’s Title IX office. She declined to comment on Schaner’s (Schaner is Appling / Payne’s accuser) case.”

Title IX Investigation

OCR contacted MSU offering technical assistance because no Title IX complaint was filed with their office and OCR learned of the case in the media. As a result, MSU hired a private firm to conduct an independent investigation into the incident.

In December 2010, the independent investigators concluded, using the preponderance of the evidence standard, that there was insufficient evidence to support that a violation of MSU’s sexual harassment policy had occurred because there was insufficient evidence that the sexual conduct was unwelcome. Office of Civil Rights Letter to Michigan State Closing Investigation, September 1, 2015; OCR Docket # 15-11-2098 and # 15-14-2113, at 29, https://www.documentcloud.org/documents/2644770-OCR-Letter-to-Michigan-State-Closing-Investigation.html (Last visited February 17, 2018).

According the the September 1, 2015 letter to MSU from OCR the female student, Carolyn Schaner (“Schaner”) reported the incident to Michigan State University Police Department but declined to file a sexual harassment complaint with the University. (See page 26, OCR Letter).

Lavigne fails to fully explain that the Title IX investigation was not initiated when the female student contacted MSU police because, as noted above, the student declined to file a complaint with the University.

I am not going to get into the minutia with respect to the allegations in the OTL article that MSU allowed Appling and Payne to have contact with Schaner. Instead, I urge those interested in a more comprehensive understanding to read pages 25 — 31 of the above-referenced OCR report, which addresses Schaner’s complaint. Schaner is “Student A” in the report.

Here are OCR’s preponderance of the evidence findings:

• • MSU failed to respond promptly when the female student reported that she was sexually assaulted by two male students in a campus dorm room.

• • OCR found that the evidence did not support a finding that the female student was subjected to unwelcome sexual conduct that created a sexually hostile environment.

• • MSU provided the female student with a resolution process comparable to OCR’s resolution process.

• • MSU took appropriate interim measures to protect the female student and prevent further harassment.

• • MSU took steps to ensure that the female student knew where to report any further harassment and that after the investigation was concluded she was made aware that she might see the male students on campus.

Lavigne’s description of the Schaner OCR case disposition: “Despite the mixed conclusions in Schaner’s case, it was the overall findings about campus culture, based on the agency’s expanded look at Michigan State, which were most critical.”

There were no “mixed conclusions” — Based on the much lower preponderance of the evidence standard, the findings by MSU’s privately retained investigator, which were adopted by OCR and included in their findings, proved that neither Appling nor Payne sexually assaulted Schaner — page 29 of the OCR report:

“The outside investigator competed his investigation in December 2010. The investigator and the University’s Title IX Coordinator met with Student A on December 19, 2010, and shared with her the conclusions in the investigator’s report. The report concluded that the evidence did not support a finding that a violation of the University’s sexual harassment policy had occurred, because the information gathered was insufficient to establish by a preponderance of the evidence that the sexual conduct was unwelcome.”

There is nothing mixed about it. It’s pretty unmixed. In fact, Appling and Payne were found to have not sexually assaulted Schaner, a de facto exoneration.

Another intentional omission.

There’s more…

“She said that, despite having a personal protection order, the university allowed Payne and Appling to walk by her and be in close proximity to her. Her complaint also stated that MSU “has been slow to respond to this incident, and has made attempts to keep the incident as quiet as possible.”

From the OCR report’s findings:

“In November 2010, during the investigation, Student A (Schaner) encountered the two male students (Appling and Payne) in a University building where all the students studied. The two male students were sitting in a private tutoring room with their tutor. While the door was closed, Student A could see the male students through the glass panel on the door. Student A remained outside the male students’ tutoring room for approximately 30 minutes. When the male students were finished with their tutoring session, they left the room and walked past her in the building. Student A called the police to report that the male students had violated the PPOs (personal protective order) by not leaving the building when she entered it.”

Curiously, Lavigne dedicated two paragraphs discussing Schaner’s PPO and contact between her, Appling and Payne, but intentionally omitted the part where Schaner waited outside their tutoring session for 30 minutes until they were done and then called MSU PD claiming that the two violated the PPO.

Lavigne’s Intent to Defame

Evidence of Lavigne and ESPN’s intent to defame Appling, Payne, Izzo and MSU basketball is highlighted in the transitional paragraph following Lavigne’s Appling, Payne, and Schaner discussion into another allegation involving an alleged sexual assault at a fraternity.

“On Jan. 29, 2014, another female student alleged to federal officials that MSU had mishandled a rape report about an incident at a fraternity two years prior. Based upon that complaint and Schaner’s, the U.S. Department of Education’s Office for Civil Rights moved from providing assistance to MSU to starting a formal investigation of the university’s overall handling of violence and sexual assault cases. The agency would end up expanding its investigation to include a review of 150 reports of campus sexual harassment, sexual violence and sexual assault from 2011 to 2014, along with surveys and discussions with multiple staff, faculty and students, including athletes. It found “significant concerns” in about 20 percent of those cases.” 

The female complainant referenced in Lavigne’s article is “Student B” in the same September 1, 2015 letter from OCR to MSU that included Appling, Payne, and Schaner. (See pages 31 – 35, OCR Letter). Lavigne writes that both reports led to OCR to move from providing assistance to MSU to conducting an investigation into MSU’s handling of violence and sexual assault cases.

Remember, OCR learned of the Appling, Payne, Schaner case from the media. OCR’s September 1, 2015 letter to MSU was sent five years after the alleged and subsequently disproven sexual assault. None of the parties were identified by OCR in their letter discussing Student A (Schaner) and Student B’s complaints.

In the next paragraph, Lavigne mentions the initiation of the Nassar investigation following a student’s complaint that Nassar massaged her breasts and vaginal area during a medical examination.

Lavigne orders the Title IX discussions in her article: 1) Appling, Payne, Schaner (20 paragraphs total); 2) Student B — referenced in the same September 2015 letter from OCR to MSU; and 3) Nassar discussion.

The underlying issue is whether MSU’s Title IX office was appropriately handling complaints. In Student B’s case, OCR found that MSU “did not provide Student B with a prompt grieving process regarding her Title IX complaint; however, OCR finds that the investigation itself was thorough, impartial, and equitable, and that the subsequent hearings were impartial and equitable.”

OCR also noted that “Student B stated that she was satisfied with the University’s decision on her complaint, but was not satisfied with the time it took to fully resolve it.” (See pages 34 – 35, OCR Letter).

In both Student A (Schaner) and Student B’s cases, MSU was found to have untimely responded to the complaints but, once involved, handled the matters appropriately.

In all three cases, the concerns are with the Title IX office response to complaints.

Because the criticism rests with procedural issues in how MSU’s Title IX office handled these complaints,  it is unnecessary to identify the parties and to instead focus on MSU’s Title IX office’s deficiencies outlined in the OCR report.

The factual bases and procedural histories are outlined in the OCR report. One can analyze and critique MSU’s Title IX office without identifying the parties, as OCR did. The parties’ identities are irrelevant; OCR provides thorough and effective analyses simply by identifying the parties as “Student A”, “Student B”, etc. Lavigne did not identify “Student B” or the male subject — she relied on the facts contained in the OCR report.

The male in Student B’s case was dismissed from the University. Appling and Payne were found to have not sexually assaulted Schaner, a de facto exoneration. Thus, why is Lavigne’s focus on two athletes found to have not sexually assaulted a fellow student instead of the male subject in Student B’s case who was dismissed from MSU?

Good question. Analyzing all the facts in the ESPN / MSU “situation”, Lavigne intentionally identified Appling and Payne to: 1) Destroy their reputations, and to harm Izzo and MSU basketball; and 2) Sensationalize and generate interest and publicity in her story — without the implication of MSU basketball (and football), her entire article is a dry Title IX treatise.

Lavigne had a choice: 1) Shield all parties from the media scrutiny and present an honest, unbiased story based on all of the available facts and case dispositions; or 2) Identify Appling and Payne, as well as Schaner, but present the Ingham County Prosecutor Office’s conclusion that no crime had been committed, as well as OCR’s adoption of MSU’s privately retained investigators, which also found no evidence of sexual assault, and analyze / critique MSU’s Title IX office’s handling of the matter; or 3) Defame Appling and Payne, subjecting both to intense #MeToo media scrutiny, branding them rapists for life, and destroying their reputations and careers.

And that’s exactly what she did. Payne was released from the Orlando Magic the day her article was published.

Lavigne knew exactly what she was doing.

And, she did it again when she published the name of the freshman MSU basketball player who was recently accused of groping another student but who has yet to be charged.

Congratulations Paula.

IX. MSU — ESPN Litigation 

The underlying issue and source of the increasing animosity between ESPN and MSU is not Larry Nassar, Tom Izzo or Mark Dantonio — the issue is that MSU believes that student-athletes have a right to privacy and ESPN does not.

“As part of a 2014 reporting effort spanning 10 universities, ESPN requested copies of all police reports involving football and basketball players from campus and local police departments over six seasons. In Michigan State’s case, the university supplied the reports but marked out the players’ names — something East Lansing police did not do. ESPN ultimately sued MSU for the release of material, and Michigan courts ruled that the school had violated the state’s open records laws, awarded ESPN the unredacted records, and told MSU to pay ESPN’s attorneys’ fees. When ESPN submitted a subsequent records request last year, MSU took the unusual step of proactively suing ESPN to defend its withholding of the documents. A judge, in dismissing the lawsuit, wrote that a public body filing suit against a requestor could create a “chilling effect” and dissuade people from requesting records in the first place.”

Part II of my response to Lavigne’s article will focus more on the 2015 litigation. Here, I will provide a very basic procedural history of the most recent litigation between ESPN and MSU.

By way of background, ESPN sued MSU in 2015 and won. MSU appealed and lost. MSU then appealed to the Michigan Supreme Court, which declined to hear the case. Court of Appeals Decision: http://caselaw.findlaw.com/mi-court-of-appeals/1711190.html

In light of Lavigne and ESPN’s despicable recent publication and broadcast of a current MSU freshman walk-on under investigation for a misdemeanor, I find this section of Justice Markman’s dissent noteworthy and quite compelling:

“Seventh, no apparent consideration was given in the lower courts’ balancing processes to the fact that many students identified in incident reports are only suspects in campus misconduct, and not actual violators. Some number of defendant’s students, for no reason other than that they have chosen to participate in intercollegiate sports, will now be permanently and publicly marked as suspects in minor episodes of campus misconduct that resulted in neither criminal charges nor convictions. Because this will result in some students who have committed no misconduct being treated identically with some students who have, should this factor have been given consideration in the exemption balancing process?”

(Read Markman’s dissent here: http://legalnews.com/grandrapids/1418492)

Justice Markman, this guy gets it —

Lavigne submitted a FOIA request immediately after Dantonio announced that three unnamed football players (King, Corley, Vance) were suspended in February 2017. She requested all files relating to the student athletes under investigation, and reminded MSU that they lost the recent lawsuits to withhold the records to ESPN and were required to disclose the documents.  MSU disclosed redacted documents.

On April 24, 2017, Chief Assistant Prosecutor Lisa McCormick wrote MSU PD and asked MSU PD not to release the documents to ESPN. Citing MRPC 3.8 (e), she stated:

“Since the cases that were discussed are open investigations and charging decisions have not been made, we believe the release of the information would infringe on the defendant’s right to a fair trial, interfere with ongoing police investigations and constitute an unwarranted invasion of privacy pursuant to MCLA 15.243 (b). We are only asking that you deny the requests at this time until we have an opportunity to make a charging decision. Once that decision is made, we would be more than happy to re-evaluate our requests that the records be denied.”

Lisa McCormick Letter to Captain Valerie O’Brien, April 27, 2017

MSU’s summary of the controversy in their Complaint for Declaratory Relief:

“Based on Defandant’s (ESPN) FOIA Request, and the Letter from the Ingham County Prosecutor’s Office, MSU has been placed in the impossible position of deciding whether to:

a. Release the Police Reports to Defendant and disregard the request of the Ingham County Prosecutor, which, according to the Office of the Ingham County Prosecutor, will infringe on the potential underlying defendant’s rights to a fair trial, interfere with ongoing police investigations, and constitute an unwarranted invasion of privacy; or

b. Withhold the Police Reports from Defendant in reliance on the representations of the Office of the Prosecutor (representations alleging that the Police Reports are exempt from disclosure under FOIA) and subject itself to potential financial liability under FOIA.”

On May 25, 2017, the Ingham County Prosecutor filed a Motion to Intervene, arguing that intervention was necessary, citing prosecutor’s special responsibilities, and that release of the information would infringe on defendant’s right to a fair trial, interfere with ongoing police investigations, and constitute an unwarranted invasion of individual’s privacy.
Once again, Lavigne is intentionally dishonest — MSU was not suing ESPN to “defend” its withholding of the unreacted documents; rather, MSU sued ESPN because the Ingham County Prosecutor’s Office asked MSU not to disclose unredacted documents to ESPN under FOIA over concerns that disclosure would interfere with the ongoing investigation, infringe on the defendants’ right to a fair trial, and that disclosure constituted an unwarranted invasion of privacy.

V. Conclusion 

In my view, the ongoing litigation between ESPN and MSU is the source of the escalating animosity and one-sided exploitation by ESPN of recent events at MSU involving that sickening, abhorrent monster, Larry Nassar. ESPN and Lavigne published and broadcast their OTL article the day after Larry Nassar’s January 2018 sentencing.
ESPN, without providing any specific evidence, claimed that Tom Izzo and Mark Dantonio mishandled sexual assault complaints. Those accusations, in the wake of Nassar’s sentencing, has fueled backlash in the media and social media, labeling MSU a rapists harboring university and causing irreparable harm to Izzo and Dantonio’s reputations and MSU. ESPN broadcast sinister distorted stylized graphics reminiscent of political smear ads with images of Tom Izzo, Mark Dantonio and Larry Nassar with the words “Crisis at Michigan State.”

ESPN sent reporters to ambush Tom Izzo at his press conference following the January 28, 2018 MSU basketball game against Maryland. ESPN recently reported that a freshman walk-on guard on MSU’s basketball team was under investigation for an alleged misdemeanor groping — and published the player’s name, in apparent violation of their policy of not identifying players under investigation for sexual assault, and continues to identify the player by name during their broadcasts.

ESPN and Lavigne has intentionally omitted and misrepresented crucially important facts in describing past incidents involving MSU players, and defamed Tom Izzo, Mark Dantonio, Keith Appling, Adreian Payne, and Travis Walton.

• • Lavigne intentionally omitted the Jones Day Report and its findings
  • Lavigne intentionally omitted Ingham County Prosecutor Dunnings’ conclusion that neither Appling nor Payne sexually assaulted Schaner
  • Lavigne intentionally omitted OCR’s findings that neither Appling nor Payne sexually assaulted Schaner
  • Lavigne lied about Travis Walton’s plea deal
  • Lavigne intentionally misrepresented the MSU v. ESPN dispute
  • Lavigne and ESPN violated ESPN’s policy and published / broadcast the name of an MSU basketball player currently under investigation for a misdemeanor groping but who has not been charged with a crime

ESPN and Lavigne’s conduct is despicable.

Here’s my personal message to Paula Lavigne: I am not done. This article is Part I — there will be a Part II, maybe a Part III or even a Part IV. I am going to systematically, methodically, dismantle your entire article, word by word, because I know there are more omissions, more lies, and more misrepresentations. And, like you, I have sources too.

Unlike you, I will — as I did here —- provide my audience with accurate information, citations to documents, and explanations within the best of my abilities so they may weigh the evidence and decide on their own. That’s my mission —

You are a liar.

I am not.

You can hide behind a billion dollar network’s wall. I will research, document the truth, and spread the message. Spartans want the truth. The victims of Larry Nassar deserve the truth. Our hearts go out to them. We have been through enough knowing that people in our community were victimized by a deranged monster — we demand answers from MSU, too.

And here’s my proposal — You disclose everything you have in your possession relating to your MSU investigations, and I’ll disclose mine. One week later, we’ll debate. Just you and me.

Deal?

I am a Spartan.

I love MSU.

You’re not going to take that away from me.

Go Green

#SpartansWill

NOTE: I reached out to Lavigne via email and she has not responded to my requests to discuss the matter.