Attorney ‘stunned’ by University of Michigan’s ‘arrogance,' resulting $1.6 million legal bill

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University of Michigan logo

ANN ARBOR, MI -- With no legal finish line in sight, bills continue to pile up in a University of Michigan lawsuit focused on the college’s sexual misconduct policy and claims it violates accused students’ due process.

As of Sept. 27, attorneys representing UM had billed $1.6 million for their services in a single related lawsuit, according to figures released by UM in response to a Freedom of Information Act records request from MLive/The Ann Arbor News.

Deborah Gordon, the attorney who sued UM on behalf of a former unnamed student claiming his due process rights were violated, said the university has been “tremendously arrogant” in its defense of its policy, a previous version of which an appellate court deemed unconstitutional.

Gordon previously asked U.S. District Judge David M. Lawson for, and was denied, more than $330,000 in her own attorney fees.

Both sides in the lawsuit blame the opposition for dragging the litigation on.

“This is a 3-year-old, heavily litigated case involving complicated legal issues, many of which have significant importance," UM spokesman Rick Fitzgerald said. "The plaintiff filed an initial complaint, an amended complaint and second amended complaint, the latter of which is 40 pages long and contains more than 200 paragraphs of allegations.

“There has been a total of 64 briefs in the trial court, with 38 filed by the plaintiff, resulting in a record that exceeds 5,000 pages” and “there have been five lengthy hearings and four status conferences in the trial court, as well as full briefing and oral arguments in the Sixth Circuit Court of Appeals.”

The legal fees are paid by UM’s insurer, Veritas Insurance Corporation, which the university owns, Fitzgerald said.

Fitzgerald said there are no deductibles paid to Veritas.

UM paid $2.3 million in total premiums to Veritas “for a wide range of insurance coverage” in the year this claim originated, Fitzgerald said.

“We do not disclose claim limits, but we can assure you that the costs in this case, $1.6 million, are not approaching those limits,” he said. “The limits are well above the level of premiums paid annually.”

A former student and fraternity brother filed a lawsuit against UM in September of 2016, after the university found him to have violated the sexual misconduct policy.

A female student, at the time a freshmen and a member of a sorority, in a report she made to the UM Office of Institutional Equity in January 2016, accused her schoolmate of having non-consensual sex with her.

The sorority member claimed she was too intoxicated to consent when the pair had sex during a “Risky Business” themed fraternity party in January 2016.

Following a three-month investigation that included interviews with more than 20 witnesses, the OIE determined there wasn’t enough information to support that the fraternity brother knew or should have known his partner was incapacitated due to drunkenness at the time they had sex.

The sorority sister, however, appealed the ruling. The appeals board, without conducting a live hearing with the accused or conducting further investigation, reversed the original decision. The fraternity brother, at the time 13.5 credit hours short of graduation, was threatened with expulsion if he did not withdraw from the university. He did so on June 27, 2016.

His subsequent lawsuit was first dismissed by a federal District Court but appealed to the Sixth Circuit Court of Appeals. There, judges sided with Gordon and the accused student, ruling that UM must offer students an opportunity to cross-examine witnesses and the accuser -- at least in cases that rely on their credibility and not other overwhelming evidence, such as video.

The case was passed back down to the District Court.

Mark Schlissel

University of Michigan President Mark Schlissel delivers his annual update of the university at the President's Leadership Breakfast at the Ross School of Business on Tuesday, October 3, 2017. (Hunter Dyke | The Ann Arbor News)

UM begrudgingly revised its own sexual misconduct investigation policy that went into effect in January, but Gordon still doesn’t believe it complies with the court’s order, since it doesn’t “expressly state” the accused will have an opportunity to perform in-person cross-examination of witnesses or the accuser. Also, the policy allows the administration to discipline accused students with, among other consequences, campus bans, the withholding of transcripts or diplomas and suspensions, prior to a full investigation or live hearing.

“The change was necessary to follow the law, but UM respectfully submits that the Sixth Circuit got it wrong,” University of Michigan President Mark Schlissel said in a statement issued after the appellate court ruling.

The university, as of June 30, had spent $650,000 defending the same policy in a separate but similar sexual misconduct lawsuit, also filed by Gordon.

Fitzgerald said the lawsuits are worth fighting.

“We must retain the authority over our policies to do that in the best way we know how and we’re willing to fight in court to maintain that authority,” he said. "Our goal is to reduce and prevent all forms of sexual and gender-based misconduct on our campus, and we can’t hand over control of that critical responsibility to keep our community safe.

“At the University of Michigan, we fight for our principles because it’s the right thing to do” and “that means defending policies designed to protect the needs and rights of all students and standing up when a judge refuses to follow the law."

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