Inside Higher Ed. June 4, 2014.
Over the objections of Senator Claire McCaskill, the American Council on Education has been keeping secret the advice it gave members about complying with the lawmaker’s sexual assault survey.
But after rebuffing several requests in recent weeks by the Missouri Democrat for a copy of the webinar it sponsored for colleges, the group sent it to McCaskill on Tuesday night -- several hours after Inside Higher Ed obtained the slides and inquired about their content.
The presentation, prepared by a Washington law firm but sponsored by the American Council on Education, did not instruct colleges to not respond to the survey. But the slides portray Congressional surveys such as McCaskill’s as laden with risk for their recipients. The document notes, for instance, that lawmakers have previously used surveys to spur regulatory action and for political messages.
“Surveys provide fodder for additional investigation,” the presentation says, noting later on that investigations bring litigation or regulatory risks as well as “public relations risks” including "reputational harm.”
The document also characterizes Congressional investigations as being motivated by a “mix of substance and politics” and as a “’Wild West’ without real rules.”
Inside Higher Ed obtained a copy of the presentation, which was conducted by the law firm Covington & Burling, Tuesday through a public records request at a public university in Florida.
After an inquiry from a reporter about the contents of the presentation, the American Council on Education on Tuesday evening sent a letter to McCaskill and provided her office with a copy of the presentation.
“We consider the issues you raised concerning our educational webinar to be resolved,” wrote Ada Meloy, the group’s general counsel. She added: “We look forward to working with you on the troubling issue of sexual assault.”
After its initial refusal to comply with her request, McCaskill last week stepped up pressure on ACE, telling the group in a letter that it should either provide the webinar materials or offer a legal justification for its refusal to hand over the documents.
Officials of the association declined Tuesday to comment on why it had decided to change its position on providing McCaskill with the webinar slides. The group also forwarded McCaskill a letter from a Covington & Burling attorney that outlines a legal case for why ACE was not required to give McCaskill a list of the colleges that participated in webinar.
The law firm’s presentation also suggests that colleges should consider that their responses might not necessarily be kept private. McCaskill has pledged that colleges’ responses to her survey would be kept confidential.
“Confidentiality?” the document says. “Absolutely no guarantees.”
It instructs colleges to take the request seriously and to make sure their answers are “bulletproof.”
In addition, the document advises colleges to treat the request internally as if it were a subpoena, but in their actual response to Congress to recognize that the survey “is not a subpoena.” It suggests that colleges see whether there is an “opportunity for negotiations” or an “opportunity to recast the questions.”
In requesting the presentation earlier this month, McCaskill said she was “extremely troubled” by the webinar and said it may have had a chilling effect on whether and how colleges respond to the survey.
Sarah Feldman, a McCaskill spokeswoman, suggested on Tuesday that the presentation validated some of those concerns.
"Based on the message ACE is conveying in this presentation -- that participating in a confidential survey, meant to learn how schools handle sexual assault on campus, would somehow be exposing institutions to the 'wild west' of politics -- it's not surprising that some schools felt they were being warned against cooperating,” she said. “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.”
Dana Bolger, co-founder of the advocacy group Know Your IX that been pushing the federal government to hold colleges more accountable for sexual assaults on their campuses, said the ACE presentation was “upsetting.”
“It shows just how little survivors factor into colleges' calculus at all,” she said. “Nowhere in the entire presentation are victims' needs considered, let alone mentioned.”
Bolger added that the presentation's “sole focus on mitigating ‘reputational harm’ and ‘public relations risks’ ” shows that “it couldn't be clearer where schools' real commitments lie: in reducing the risk of harm to the university, not to their students.”
The presentation also advises colleges about “issues on the horizon,” such as Congressional investigations, subpoenas and oversight hearings.
In preparation for hearings, the document says, colleges should practice their testimony and anticipate potential questions.
“Focus on themes; not wordsmithing,” the presentation advises. “Know the facts. What will play well on TV?”
McCaskill’s survey of colleges is part of a fact-finding effort that she is using to develop new legislation aimed at curbing campus sexual assault. More than 300 colleges have responded to the survey so far, according to her office. The results are expected to be released this summer.
The Missouri Democrat is also holding a series of roundtable discussions on campus sexual assault in advance of releasing the legislation she is working on with Senators Kirsten Gillibrand of New York and Richard Blumenthal of Connecticut. McCaskill has said she’s interested in changing the incentives for colleges to report instances of sexual assault and creating stiffer penalties for colleges that violate federal rules in their handling of sexual assault cases.