Judge criticizes ‘U’ for ‘keeping the President out of the public eye’ in sexual misconduct lawsuit

Tuesday, June 18, 2019 - 12:33pm

Arthur Tarnow, U.S. District Judge speaks on President Mark Schlissel’s involvement in the Doe v. University of Michigan lawsuit Monday.

Arthur Tarnow, U.S. District Judge speaks on President Mark Schlissel’s involvement in the Doe v. University of Michigan lawsuit Monday. Buy this photo
Alec Cohen/Daily

U.S. District Judge Arthur Tarnow responded to an order from the U.S. Sixth Circuit Court of Appeals on Monday afternoon, criticizing University of Michigan attorneys for not participating in “good faith” and accusing the University of going “extraordinary” lengths to ensure President Mark Schlissel did not have to publicly appear in court during the ongoing Doe v. University of Michigan lawsuit.

“The University’s attorneys appear to be more concerned with keeping the President out of the public eye than with prompt resolution of this case and providing a fair process for adjudicating sexual misconduct claims,” Tarnow wrote.

Tarnow’s response is filed after the Sixth Circuit Court of Appeals granted a last-minute appeal by the University to delay the June 13 public settlement conference for the lawsuit at which Schlissel was scheduled to appear. In the response, Tarnow addressed a University petition filed at the same time asking the Sixth Circuit Court to not require Schlissel’s attendance and move the conference off-the-record and closed to the public.

Deborah Gordon, the plaintiff's attorney, has not yet filed a response. In the order, Raymond Kethledge, circuit judge for the U.S. Sixth District Court of Appeals, requested responses from Gordon and Tarnow within 10 days and wrote the settlement conference would be delayed until further notice.

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 — and claims his due process rights were violated when the University froze his transcript and degree following a complaint of sexual assault against him.

In January, following a Sixth Court of Appeals ruling in a different lawsuit argued by Gordon, the University released a revised interim sexual misconduct policy, which allows the accused to cross-examine the accuser. On June 5, University lawyers filed a motion to dismiss the Doe v. U-M lawsuit, arguing Doe’s due process argument is no longer relevant because of the new policy.

However, Tarnow takes issue with the fact that the University did not consult Gordon when creating the interim policy, as he noted the policy affects Gordon’s client. Had the University written the new sexual misconduct policy with input from Gordon, Tarnow claims, the ongoing Doe v. U-M lawsuit could’ve already been resolved.

“The University’s unilateral actions virtually guarantee the possibility of an appeal of any ruling by the Court,” Tarnow wrote. “The result? Delay, uncertainty, and additional billable hours for an ever-expanding defense team, with no added value to its client.”

Because of this, Tarnow wrote, the University is not “sincerely committed to its purported goals of serving the interests of all of its students and expedient resolution of this case.” He also noted the Court has “bent over backwards” to accommodate Schlissel’s schedule, changing the originally scheduled court date from June 11 to June 13.

Gordon, Tarnow and University lawyer Joshua Richards took part in a teleconference on May 1, at which Tarnow denied multiple requests from Richards to excuse Schlissel. According to the transcript, Tarnow said this case should be of high importance to Schlissel and ordered he appear because “this is the kind of decision that ultimately would have to be at least OK’d by the President.”

University spokeswoman Kim Broekhuizen wrote in an email to the Daily Schlissel was prepared to attend the originally scheduled private settlement conference until it was changed to be public less than 48 hours before it was expected to begin.

Broekhuizen noted the University is “deeply concerned” with ensuring fair proceedings in the lawsuit.

“Notwithstanding Judge Tarnows statement that ‘holding a settlement conference’ in open court ‘is the Court's attempt to protect all parties’ from ‘unnecessary publicity,’ Judge Tarnow has not explained how a settlement conference open to the public will better serve to bring about a resolution of this matter than a private discussion between the parties and the court,” Broekhuizen wrote.

In changing settlement conference from private to public, Tarnow noted he “perhaps too abruptly” chose to “err on the side of transparency in this matter of public importance.” He wrote the University’s June 5 filing to dismiss the lawsuit helped in persuading him to make the meeting public, as it caused confusion in the media as to whether the University was trying to avoid the settlement conference.

Tarnow wrote he originally hoped to resolve the lawsuit by settlement conference partially because it would help “preserve the University’s public image,” but claimed “the University has pursued every possible avenue for garnering publicity in this case.”

“The University’s Petition is without merit,” Tarnow wrote. “... Based on its experience and course of dealing with the attorneys over the past year, the Court believes it reasonable and necessary to require the President to appear to achieve the University’s effective participation.”