Court of Appeals grants ’U’ request for delay of settlement conference with Schlissel

Wednesday, June 12, 2019 - 10:59pm

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Design by Alec Cohen

Sixteen hours before University of Michigan President Mark Schlissel was expected at U.S. District Court in Detroit for a settlement conference as part of the lawsuit Doe v. University of Michigan, the Sixth Circuit Court of Appeals released an order on Wednesday night postponing the meeting until further notice. The order grants an emergency motion for stay filed by University lawyers early Wednesday morning, which only asks the meeting be delayed.

The order gives the Court of Appeals time to review the merits of an emergency petition — filed at the same time as the motion — requesting the meeting be held without Schlissel and off the record. The Court of Appeals noted it may deny the requests of the petition without an answer.

In an email to The Daily, University spokesperson Rick Fitzgerald wrote that University officials — including Schlissel — were prepared to attend a private settlement conference this Thursday. Fitzgerald also wrote that the University confirmed with court clerks on May 24 the meeting would be private, which he claimed is “a normal expectation for settlement conferences.”

However, learning Tuesday morning District Court Judge Arthur Tarnow had ordered the meeting be held in open court instead, University lawyers filed two emergency requests, a step Fitzgerald called “extraordinary.”

In the order granting the delay, Circuit Judge Raymond Kethledge requested the plaintiff's attorney, Deborah Gordon, submit a response to the University's petition within 10 days.

Kethledge also asked Tarnow to address the University's petition, which Fitzgerald called “remarkable.”

"Judge Tarnow himself has been ordered to explain his decisions to the Court of Appeals within 10 days," Fitzgerald wrote. "It is my understanding that this part of the order is quite unusual."

Kethledge wrote there are four factors the court considered when issuing the order: whether the petitioners have made a strong showing that they are “likely to succeed on the merits,” “be irreparably injured absent a delay,” “substantially injure the other parties interested in the proceeding” and “where the public interest lies.”

Additionally, Kethledge wrote parties disagreed upon the name and purpose of the June 13 event. Kethledge wrote that while the District Court and University refer to meeting as a “settlement conference,” the plaintiff has called it a “status conference.” The University’s petition argues settlement conferences are typically off-the-record, so the meeting should be held in closed court.

In an interview with The Daily, Gordon said she never expected to resolve the entire case at the meeting, which is why she believes calling it a “settlement conference” would be a misnomer. She called the motion a “last-ditch effort” to keep a discussion with Schlissel out of the public record because the motion was not filed until Tarnow announced the conference would be open to the public.

“Obviously the University does not want any discussion on-the-record with the President of the University,” Gordon said. “That’s all that I can take away from this. There’s no other conclusion one can take.”

Gordon said it was not her idea to have Schlissel present at the meeting and she wouldn’t have minded discussing the case in closed court. However, she voiced support for Tarnow’s decision.

“I’m all about the public’s right to know what the government is doing and why,” Gordon said. “I would’ve also been fine with it being (in closed court). ... I think it’s a good idea to have the top person present so we can get to the bottom of this, but the University is prepared to drag it out. That’s fine, but that’s what’s now going to happen.”

In her response to the Court of Appeals’ order, Gordon claims the University’s requests in the petition have “virtually zero likelihood of success.”

“The University of Michigan, in my opinion, I have found them to utterly dug-in on everything and always trying to get everything dismissed,” Gordon said.

On Tuesday, two days before the meeting was originally scheduled, Tarnow ordered the conference to be held on-the-record and open to the public and the media, as he said “this case concerns matters of public interest."

Calling Tarnow’s order that Schlissel appear in open court “unprecedented” and “a clear abuse of discretion,” the University’s petition requests the meeting be postponed, held in closed court and without requiring Schlissel’s attendance. University lawyers claim judges can neither mandate settlement negotiations to occur in public nor order specific individuals to appear.

University lawyers claimed in the petition Tarnow has ordered Schlissel to appear publicly to “air to the President his personal views” regarding the University’s policies.

In another case Gordon argued against the University, Doe v. Baum, the University failed to comply with the holding that accused students must have the opportunity to cross-examinations their accuser when credibility is in question. The court decided this may be performed in two ways: Either the accused student may directly cross-examine the accuser, or an “individual aligned with the accused student” may do so on their behalf.

“Judge Tarnow has made clear that he intends to use this conference not as a means to facilitate good-faith efforts at settlement, but rather as an opportunity for him to personally and publicly engage with a State official about his views on the wisdom of difficult policy choices that the U.S. and Michigan Constitutions, as well as this Court’s decision in Baum, leave to the University’s discretion,” the petition reads.

Though acknowledging the petition is “a serious and unusual remedy,” University lawyers claim the University will suffer “irreparable harm” if Schlissel appears at the conference in open court.

“Left undisturbed, (Tarnow’s) Orders threaten to set a dangerous precedent whereby any state, federal, or corporate official could be hauled into open court, anywhere in the country, so that any individual judge may cross-examine that official on matters of public policy, in the name of “settlement,” the petition reads.

Last week, University of Michigan attorneys filed a motion for dismissal of the Doe v. University of Michigan lawsuit in question, which claims a male student accused of sexual assault was denied due process under the University’s sexual misconduct policy. Fitzgerald said the motion is a standard legal filing and is not related to the upcoming conference, MLive reported.

One of the arguments of the lawsuit claims the University’s Office of Institutional Equity refused to offer a hearing or cross-examination to the male student even though these options are available in other resolutions of misconduct. In the motion for dismissal, University lawyers claim the due process argument in the lawsuit is no longer relevant because of changes to the sexual misconduct policy.

This motion for dismissal of the lawsuit was denied by Tarnow.

The lawsuit

Doe v. University of Michigan involves a male undergraduate student who sued the University in June 2018. The student, referred to as “John Doe,” was on track to graduate and had been accepted to the University’s graduate engineering program, in addition to programs at other colleges. The student felt his future was endangered when the University froze his transcript and degree following a complaint of sexual assault against him.

Doe’s transcript was released in June, within a week of the lawsuit being filed.

The allegations trace back to November 2017, when a female student reached out to Doe, a University residential adviser, about getting together. Doe invited her to his room, at which point they watched a movie and had sexual relations. Four months later, in March 2018, the female student accused Doe of sexually assaulting her during the interaction in a complaint filed with the University’s Office of Institutional Equity.

The female student said Doe had nonconsensual sex with her in his residence hall room. However, Doe said in the lawsuit the encounter was consensual and no drugs or alcohol were involved, the Detroit News reported. There were no witnesses to the encounter in question.

The lawsuit aligns with a 2017 ruling regarding the University of Cincinnati, in which a similar case founded exclusively upon “he said/she said” grounds and in which defendant failed to “provide any form of confrontation of the accuser” made the proceeding “fundamentally unfair” to the case’s defendant.

Doe said in the lawsuit he was unaware of the allegations during his interview with the OIE, rendering him unable to respond adequately. Additionally, the lawsuit claimed the University refused the option for a hearing or cross-examination to Doe, even though this is provided to students facing other violations.

On May 9, Tarnow turned down a motion from University lawyers which would have overturned the order requiring Schlissel’s appearance.

Tarnow originally ordered Schlissel to court on May 1 during a teleconference with Joshua Richards, a Pennsylvania-based attorney representing the University and Gordon. During the teleconference, Gordon echoed Tarnow’s sentiments regarding Schlissel’s attendance in court, while Richards made repeated arguments against the order.

According to court documents, Richards made repeated attempts to sway Tarnow from requiring Schlissel’s attendance in court at the meeting.

Richards first argued Schlissel should delegate the task because he is not the University official primarily responsible for this policy, though when asked by Tarnow, Richards was not aware of who this University official was. Tarnow said that person is also welcome to attend with Schlissel.

Tarnow also said it is important Schlissel attends because, although he may not be the most well-versed official, he will ultimately have to approve policy changes. When Richards said the approval could also be delegated, Tarnow said “this is the kind of decision that ultimately would have to be at least OK’d by the President.”

Gordon told Tarnow these questions were brought during past discussions, at which point she said Richards stated Schlissel would make all final decisions. Richards denied this.

Tarnow shut this conversation down, saying he does not dispute that tasks are often delegated at a large institution like the University. However, Tarnow said whoever is most knowledgeable about the policy will ultimately report to Schlissel, bolstering the importance of Schlissel’s attendance.

Richards responded to this by saying whoever did attend would have the same authority as Schlissel. Tarnow said he believed him “100 percent,” but this did not change his mind about the order.

Following this, Richards asked for clarification about why Schlissel had to attend. According to court documents, Tarnow said “he didn’t have to explain himself,” but went on to respond to Richards’ inquiry.

“If you want me to put it in writing so the media has it, it will be something like, ‘the President has been requested to participate in a discussion of a proposed rule and has chosen not to appear,’” Tarnow said. “Therefore, I order that he appear.”

There was also discussion about Schlissel’s role in notifying the University community of the policy changes, which would further elevate the need for Schlissel’s presence at the actual conference.

Richards then asked if Schlissel could call in to no avail. Tarnow said the University is not far enough away to warrant a phone call appearance.

When Richards asked again, Tarnow responded by saying “it’s less than an hour” drive from Ann Arbor to the courthouse in Detroit.

Tarnow also said he understood the importance of Schlissel’s other meetings and, as he said before, had no issue with offering alternative dates. He then asked about Gordon and her client’s availability, at which point she responded they would clear their schedules for this.

Richards came back to Tarnow on Wednesday and made the argument Tarnow overstepped his discretion and should overturn his order. At this point, the University submitted a motion for reconsideration, asking for another University official to attend in lieu of Schlissel, and for the case to be handed over to a different member of the court. Both requests were denied.

Tarnow said during the conference call this case — and by extension the University’s sexual misconduct investigative policy — is one of the biggest issues facing the University at the moment and, with its national implications, should be treated as such.

“Let me say this: This should be more important to him than almost anything going on at the University,” Tarnow said. “I am not sure I would understand anything else being more important than resolving what is a hot-button issue at every university in this country.”

Timeline of events

Nov. 11, 2017: A female student reaches out to “John Doe,” a University residential adviser, about getting together. Doe invites her to his room, at which point they watch a movie and have sexual relations.

March 12, 2018: The female student accuses Doe of sexually assaulting her during the interaction in a complaint filed with the University’s Office of Institutional Equity.

June 4, 2018: Doe files a lawsuit with attorney Deborah Gordon, Doe v. University of Michigan, against the University when it froze his transcript and degree following a complaint of sexual assault against him. Within a week, the University releases the transcript.

May 1, 2019: Gordon, University lawyer Joshua Richards and U.S. District Judge Arthur Tarnow have a teleconference. During the teleconference, Richards makes multiple arguments for why University President Mark Schlissel should not have to attend the settlement conference, though Tarnow ultimately rejects these arguments and court-ordered Schlissel’s appearance.

May 6, 2019: University lawyers file a motion to overturn the court-ordered appearance.

May 9, 2019: Tarnow turns down the motion and the court date is set for June 11 at the U.S. District Court in Detroit.

May 13, 2019: The court moves the settlement conference to June 13.

June 5, 2019: University lawyers file a motion to dismiss the lawsuit, citing its 2019 interim policy in claiming the due process argument of the case is no longer relevant. Tarnow denies the motion.

June 11, 2019: Tarnow opens the settlement conference to the public and the media.

June 12, 2019: Early morning, University lawyers file an emergency motion to delay the conference and an emergency petition to make it off-the-record and without Schlissel. In the evening, Raymond Kethledge, U.S. Sixth Circuit Court of Appeals circuit judge, releases an order in response to the motion delaying the conference until further notice while the court reviews the merits of the petition.

This article has been updated to reflect Fitzgerald only finds the request for Tarnow to respond to the University's petition "unusual" and "remarkable." The article previously said Fitzgerald believes the request for Gordon to respond was "unusual" and "remarkable" as well.