UM wins bid to shield Schlissel from court, judges rule

Robert Snell
The Detroit News

A federal judge abused his discretion when he ordered University of Michigan President Mark Schlissel to attend a court hearing and publicly discuss a sexual misconduct case against a student, a federal appeals panel ruled Friday.

UM President Mark Schlissel

The opinion from the 6th U.S. Circuit Court of Appeals served as a victory for UM and a rebuke of U.S. District Judge Arthur Tarnow, who accused university officials of being more concerned about shielding President Mark Schlissel from scrutiny than fairly handling sexual misconduct cases involving students.

"We’re pleased that the Sixth Circuit intervened in this matter and ruled in favor of our view," university spokeswoman Kim Broekhuizen wrote in an email to The News.

The dispute dates to May, when Tarnow — frustrated with the university’s apparent foot-dragging in a civil lawsuit — ordered the UM president to appear in court and said the hearing would be open to the public.

"He will be here," Tarnow said. “This should be more important to him than almost anything going on at the university. … 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."

U.S. District Judge Arthur Tarnow

The 6th U.S. Circuit Court of Appeals' three-judge panel said Friday that Tarnow overstepped his authority.

"This case is about power," Judge Amul Thapar wrote for the unanimous panel. "... the district judge abused his discretion when he ordered a specific high-ranking state official to serve as a party’s representative."

Tarnow could have sanctioned the university instead, the judge added in the 3-0 decision.

"But the rules did not allow the district judge to order a forced public settlement conference where the University’s principal executive is held to account," Thapar wrote.

The appeal stemmed from a civil lawsuit filed against the university by a graduate student accused of sexual misconduct. The student, identified as John Doe, is suing the university, which froze Doe’s undergraduate degree and academic transcript until Tarnow intervened in 2018, said the student's attorney, Deborah Gordon.

Doe denies any wrongdoing and said the sex was consensual after the pair watched movies in a dorm room, his lawyer said. Alcohol and drugs weren’t involved.

A federal appeals court, in a major decision last year, said the university must allow cross-examination in sexual misconduct hearings.

Schlissel was supposed to attend the June hearing until the university filed an appeal.

Tarnow filed a sharply worded response after the university successfully delayed the hearing.

"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.

The judge’s comments demonstrate why UM is concerned about fairness as the case is in federal court, Broekhuizen wrote in an email to The News in June.

“The university's president was fully prepared to attend a settlement conference and would have done so had Judge Tarnow not changed his mind less than 48 hours before and decided to hold a ‘settlement conference’ in open court,” Broekhuizen wrote. “… 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.”

The university’s hearing procedure for Title IX complaints is legal and fair, Broekhuizen added.

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