The University of Michigan’s high-profile court losses on due process in Title IX sexual misconduct proceedings gave ammunition to the Trump administration when it proposed and enacted regulations to level the playing field between accuser and accused.
Even as the Biden administration pledges to largely scrap those regulations with its own Title IX rulemaking, the taxpayer-funded university’s legal bills keep accumulating, partly due to its refusal to fully repudiate its procedures or hold its tongue in the media.
This week U.S. District Judge Terence Berg approved nearly $411,000 in attorney’s fees and costs for a student who sued the university in 2018 for indefinitely withholding his degree and transcript without a hearing after another student accused him of sexual misconduct.
The determination partly turns on the interim policy adopted by the university after the 6th U.S. Circuit Court of Appeals ruled in a later case, known as Baum, that UMich must provide hearings and direct cross-examination in sexual-misconduct proceedings.
While UMich claimed the interim policy rendered the case by “John Doe” moot, it didn’t explain “the process or procedure used to create” the policy or provide evidence that its “due process protections were permanent,” Berg wrote.
Then UMich president Mark Schlissel, fired this year for an alleged “inappropriate relationship” with an employee, told the media “the Sixth Circuit got it wrong” and called the university’s former policy “the best way to determine truth and minimize harm.” That suggests the old policy could come back, Berg wrote.
Campus policy changes intended to avert litigation have become a sticking point in other cases.
Last year the Supreme Court ruled that public colleges can’t escape First Amendment lawsuits by quickly changing their policies. The students in that case received an $800,000 settlement last week in attorney’s fees and “nominal damages.”
Last month a federal judge issued a preliminary injunction against the University of Houston’s anti-discrimination policy on First Amendment grounds, noting the university revised the policy “one business day before a conference with the Court” and did not say the revision was permanent.
The parties settled earlier this month, with the university agreeing to never resurrect the policy, adopting the Supreme Court’s three-part test for harassing speech, and paying $30,000 to the students’ lawyers at Speech First.
The First Amendment litigation group previously reached similar non-financial settlements with the University of Texas and the University of Michigan, the first target of its campaign against so-called bias response teams.
‘Illusory victory’ or illusory promise?
The $411,000 award of attorney’s fees and costs to Doe, first proposed in a November “report and recommendation” by U.S. Magistrate Judge Elizabeth Stafford that Berg approved, adds to UMich’s hefty legal bills in due process litigation.
Just a year into the case and without going to trial, UMich had already spent nearly $650,000 on three law firms. Months later, more public records revealed it had spent $1.6 million defending Baum, which had expanded due process requirements from a 2017 ruling against the University of Cincinnati.
“The university spends an absurd amount of money” defending these cases, lawyer Deborah Gordon, who represents both Doe and the plaintiff in Baum, told Just the News.
As of January 2020, she said, it had spent $1.14 million on the former case – now closer to $2 million – and more than $500,000 on another Gordon case alleging sexual harassment by a gay professor against a heterosexual student. The university didn’t answer requests to verify her figures and comment on Judge Berg’s order.
Magistrate Judge Stafford knocked down several university interpretations of the 6th Circuit’s post-Baum directions to U.S. District Judge Arthur Tarnow, who passed away in January.
While it ordered Tarnow to reconsider his early ruling for Doe, and the effect of UMich’s revised Title IX policy, the appeals court didn’t question his “subject matter jurisdiction,” Stafford wrote. The university closed the investigation because the accuser dropped out after Tarnow ordered a hearing for Doe, which the 6th Circuit deemed “the inflection point for mootness.”
The appeals court also said its remand did not “necessarily disturb” Doe’s status as “prevailing party” for the purpose of attorney’s fees, Stafford wrote. She agrees he is eligible because “he has achieved court-ordered, material, and enduring change” in his legal relationship with UMich, not least a “clean transcript” with no disciplinary notation.
Though UMich said Doe only achieved an “illusory victory” through its agreement to give him a hearing under the interim policy, Judge Tarnow’s finding that this more-protective policy itself might be “illusory” means that Doe “obtained relief on significant issues in the case.”
Judge Berg’s order approving Stafford’s report referred to the 6th Circuit’s reinstatement of Speech First’s challenge to UMich, which also questioned its commitment to revising allegedly speech-chilling policies.
“Determining whether the conduct could not reasonably be expected to recur,” thus mooting the case, “must consider the totality of the circumstances surrounding the cessation,” he wrote. Schlissel’s media comments and the policy’s “interim” label made clear the university had not promised to permanently ditch the old policy.
Berg agreed with Stafford that the 6th Circuit’s silence on jurisdictional issues “speaks volumes.” Appeals courts have an “independent obligation” to determine subject-matter jurisdiction even when it’s not challenged, and in this case, UMich twice raised the issue in appeals briefs.
Much of the remaining order is devoted to approving Stafford’s calculation of attorney’s fees for Gordon, who succeeded in raising her approved hourly rate from $540 to $600 based on “over 40 years of trial practice experience” and “the passage of time since the stay.”