Ex-justice Young’s role in MSU probes draws criticism
When Lisa Brown was a security guard on the night shift for Samuel-Whittar Steel’s Detroit plant, a foreman often made sexually suggestive comments to her when they were alone, she alleged in a lawsuit.
Michael Brown, who was not related to Brown, allegedly told her he enjoyed watching her from behind, and the front, and wanted to pull her long hair while having sex with her, according to court documents.
Brown complained about her co-worker’s comments at least three times to a plant manager before her co-worker followed her into a room and raped her in November 2000, she alleged.
Brown went to police and also sued Samuel-Whittar for negligent retention, a claim that an employer should have fired someone if management knew or should have known about the person’s potential for hurting someone else. The case went to the Michigan Supreme Court, but she lost in 2007, with the majority opinion written by Robert Young Jr. — then a justice of the high court who is now playing a key role in helping Michigan State University get past the Larry Nassar scandal.
Young’s opinion in the Brown case and other cases have some questioning his appointment as the lead counsel overseeing the multiple investigations and Title IX complaints involving allegations of sexual misconduct at MSU.
“Modern workplace speech is, at times, boorish and undesirable,” Young wrote in a decision that stirred controversy at the time.
In the Brown ruling, Young also wrote that Samuel-Whittar owed no obligation to Lisa Brown because it had no notice of her co-worker’s inclination to rape.
“Brown’s words were crude and highly offensive,” Young wrote. “Comments of a sexual nature do not inexorably lead to criminal sexual conduct any more than an exasperated, angry comment inexorably results in a violent criminal assault.”
John Manly, a California-based attorney representing more than 100 women who have sued MSU and other institutions in the Nassar scandal, said Michael Brown’s alleged statements to Lisa Brown were a “clear red flag for predatory behavior” but apparently not to Young.
“The issue is not with whether or not he has the right to that view as a judge. He does,” Manly said. “The issue is not whether he is a bad or immoral person. I’m sure he’s not. The issue is whether someone that so clearly and fundamentally misunderstands sexual violence should be charged by MSU in 2018 with the handling of the largest child sexual assault case in American history? I would say it sends precisely the wrong message to victims.”
Young, who served two decades on the state’s highest court, was named to his MSU post in February by interim President John Engler, who took over amidst the fallout over the scandal involving Nassar, a former MSU and USA Gymnastics doctor, who molested women and girls under the guise of a medical treatment over two decades.
Young was trying to unseat U.S. Sen. Debbie Stabenow of Lansing, but dropped out of the race in early January because of inadequate funds.
Engler’s appointment of Young and several other political allies to key posts at MSU has led some observers to question the university’s commitment to changing the culture that allowed Nassar’s abuse to go unchecked for so long. Many students and faculty don’t think the university is on the right path under Engler.
But MSU officials said Young’s experience, which includes two decades on the Michigan Supreme Court, makes him the right person to lead the university’s legal response to sexual assault investigations.
“Former Chief Justice Bob Young is exactly what we need right now at MSU to help the university through the various investigations and to fulfill our commitments to the survivors,” said Emily Guerrant, an MSU spokeswoman. “His extensive legal and judicial resume speaks for itself. He is also a former board member of Vista Maria, an organization that provides resources to hundreds of women and children who have suffered the effects of abuse, neglect and trauma; as well as Central Michigan University. This combination of judicial, higher education and advocacy experience is helpful to our staff as we navigate through the coming year.”
Asked how Young can change MSU’s culture, Guerrant said Young is not an MSU employee. Rather, he is assisting the MSU Legal Team with the litigation resulting from Nassar’s misconduct.
“It’s not a full-time, nor a permanent position,” Guerrant said. “We believe Mr. Young has the right credentials to help us through those projects.”
Young, who offered the university a 10 percent discount on his $640 hourly fee, did not respond to requests for comment.
Criticism of Young’s MSU post come as perceptions of how the university is handling the sexual abuse scandal spawned by Nassar seems to be getting worse, from the indictment of former MSU Osteopathic Medical School Dean William Strampel to the alleged tracking of Nassar survivors on social media by a public relations firm hired by MSU.
Michigan State is facing more than 250 civil lawsuits from Nassar survivors, in which the university recently agreed to return to mediation. MSU also faces numerous investigations, including ones launched by the Michigan attorney general, the U.S. Education Department, the NCAA and Congress.
The Samuel-Whittar case isn’t the only instance where Young decided a legal dispute involving sexual misconduct.
In one 2000 case, Young and the court’s majority ruled that the operator of a drop-in center for adults with mental or emotional disabilities was not liable despite retaining an employee who had previously been convicted of molesting a woman with mental disabilities.
The employee, Gerald Flagle, possessed keys to the facility, and that gave him an opportunity to engage in sexual activity with a developmentally disabled woman, according to court documents.
“How can the university’s commitment to Title IX compliance be taken seriously when run by a man who has proven to have zero understanding about sexual assault, sexual predators, enabling behavior and the devastating impact on its victims?” Manly said.
Additionally, Michigan State and USA Gymnastics have cited cases authored by Young to support legal arguments to dismiss the civil lawsuits, according to an analysis by colleagues working with Manly.
USAG noted Young’s opinion in the Brown vs. Brown decision when it filed a motions to dismiss the suits against it.
Michigan State also cited several cases, including a 2002 ruling written by Young, in its arguments to dismiss the suits against the university, saying that MSU, as a public entity, is entitled to governmental immunity.
In that case, retired Detroit Police Lt. Linda Mack sued the city for discrimination based on her gender and sexual orientation after she complained that male supervisors had propositioned her for sex while she was working in the sex crimes unit, court records show.
After Mack’s complaint, no action was taken against the supervisors, allegedly because she is a lesbian, according to her lawsuit. She was relegated to an afternoon desk job, taken off investigative work, and not allowed to take off more than two weekends each month, her suit alleged.
Mack alleged intentional infliction of emotional duress and violations of the city charter, which prohibited discrimination based on gender and sexual orientation, court documents show. But the city moved for summary disposition, arguing Mack’s claims were barred by governmental immunity and that the city charter did not give her a cause of action.
“Because the plaintiff failed to plead a recognized claim in avoidance of government immunity, her sexual orientation discrimination claim should have been dismissed,” the Supreme Court opinion stated. “Government immunity is a characteristic of government and this plaintiff must plead her case in avoidance of immunity.”
While the GTLA allows suit against a government agency in five areas, the opinion states that none can allow suit for sexual orientation.
MSU, in its motion to dismiss, cited the Mack case, stating that government immunity “is a characteristic of government.”
“This means that MSU is entitled to a presumption of immunity,” the motion stated.
Besides Manly, others concerned about Young’s MSU appointment include Kalamazoo resident Sterling Riethman, who was among Nassar’s victims.
“Having Young, or someone with Young’s track record anywhere near these investigations, is a clear sign they have zero regard for our well-being,” said Riethman. “Engler has asked us to trust him and yet none of his actions have shown any sort of semblance to being survivor-focused, or even survivor-conscious.”
Rachael Denhollander, the woman who first spoke out against Nassar, also is alarmed about Young’s role at MSU. She said he has “an absolutely abhorrent track record as a judge, on the specific issue of sexual assault.”
“At every turn, MSU and Engler have appointed political insiders who have a consistent record of being part of the culture of abuse,” said Denhollander, an attorney. “This is not change. This is not transparency. This is institutional protectionism, and it should deeply concern every citizen whose money is being used to fund a university that oversaw the greatest sexual assault scandal in sport and campus history. Especially when this university, at every chance to make real change, runs in the opposite direction.”
Robert P. Young
Born: Des Moines, Iowa; raised in Detroit
Politcal party: Republican
High school: Detroit Country Day
College: Harvard University (BA, JD)
Associate Justice of the Michigan Supreme Court: 1998-2017
Chief Justice of the Michigan Supreme Court: 2011-17