Thursday, May 31, 2018
Prof. Justine Dunlap has been following the Larry Nassar case. She reports on the settlement between MSU and Nassar's victims.
Michigan State University recently entered into a $500 million settlement with Larry Nassar’s victim/survivors. Of that amount, $425 million goes to the plaintiffs and $75 million is reserved for future claimants. The $425 million will be placed in a fund from which costs and lawyers’ fees will be extracted. Then a determination will be made as to how much each of the 332 survivors will receive; the range of payments is said to be between $250,000 and $2.5 million.
The settlement sum has drawn much attention. Naturally, it has been contrasted with the $100+ million paid out by Penn State University for the victims of Jerry Sandusky’s crimes. In that case, however, there were only a small fraction of the number of victims—approximately 10% of number that are present in the Nassar case.
Further, the anticipated settlement was central to Moody’s downgrade of MSU’s long-term bond rating in early May. Moody’s rationale was that the agreement—the mediation of which was then ongoing—could result in significant “financial ramification” to the university. Moody’s noted that the increased financial risk from Nassar-related pending lawsuits would involve “ongoing legal costs and university investment into enhanced risk management and governance issues increasing costs.”
MSU’s legal costs have not been cheap. More than a year ago, the university paid Skadden Arps attorney Patrick Fitzgerald $990 per hour for his investigation of how the university handled the matter. In the present settlement mediation, MSU was represented by Robert Young, Jr., a former Michigan Supreme Court justice, for the hourly rate $640. A veritable bargain by comparison.
How MSU will finance the settlement remains unclear. MSU interim president John Engler indicted in a statement released the day after the settlement that the university’s insurers were involved in the process and he anticipated that they would honor their contractual obligations. But even if they do, that amount won’t cover the costs. And what about state money? The $500 million price tag is almost double what the school receives from the state annually (that sum is $281). Engler, a former Michigan governor, said that he would not seek additional funds from the state to satisfy the settlement. Legislators have also made clear that they would not support such a request.
The settlement is about more than the money that the survivors (and lawyers) will receive. It is, one hopes, a further step in resolution, coming less than four months after Nassar was sentenced to 40-125 years in prison. A resolution to a case that was 20 years in the making, as Nassar’s crimes were first reported in the late 1990s. It remains to be seen whether it is also a real step in either institutional or legal reform.
On those counts, whether real change is happening at the university remains a matter of opinion. The university touts, as surely it must, all that it has done and is continuing to do. Much of the information on the President’s page of the school’s website has to do with its post-Nassar initiatives. On the other hand, other groups, such as Reclaim MSU, assert the University’s recent steps are a continuation of the problem that failed to stop Nassar 20 years ago.
As to legislative reform, the state legislature is considering legal changes, including alterations in the applicable statutes of limitations and the stripping of immunity from state actors who knew but did not act. Of course, time will tell what legislative changes are wrought. More significantly, time will tell whether any legislative changes made were ones that actually matter.
Sunday, April 22, 2018
Editors' note: In this post Prof. Dunlap reflects on essential conflicts of interest faced by universities when risk management is a factor in determining how to proceed with Title IX complaints.
The March 26 arrest of William Strampel, the former dean of Michigan State University’s College of Osteopathic Medicine, served as a vivid reminder of the poor decision-making that occurred at MSU regarding serial abuser Larry Nassar. It turns out that as early as 2004—two years into Strampel’s tenure as Dean and 10 years before he was put in charge of ensuring that protocol regarding Nassar’s contact with gymnasts was followed—a memo voicing concern about Strampel’s behavior was sent to Lou Anna K. Simon. Simon was then the MSU Provost and went on to become MSU president; she stepped down on January 24, 2018, the same day as Nassar’s sentencing.
Hindsight is, of course, 20-20. Further, the Me Too Movement has heightened awareness of the ubiquity of sexual harassment. And it is likely not possible to know what action, if any, Simon took against Strampel. What we do know, however, is that it was wildly inappropriate to have Strampel providing oversight for Nassar.
So it is worthwhile to examine subsequent efforts by MSU undertaken after its 2014 Title IX investigation resulted in Nassar being permitted to seeing patients again. One such effort was the university’s hiring of famed former prosecutor Patrick Fitzgerald—apparently at $990 hour—to, in Fitzgerald’s words, “assist MSU in responding to allegations of misconduct concerning” Nassar. These allegations re-emerged after a 2016 investigative series from the Indianapolis Star newspaper.
Surely, the university ought not be criticized for doing risk management--although the choice of a law firm that billed the public university close to $4.1 million is open to question. Of more concern is the misimpression in the minds of many that Fitzgerald was doing a thorough review of what went wrong. It is now clear that was not what Fitzgerald was retained to do. His work did not even result in a written report, Fitzgerald told Michigan Attorney General Bill Schuette in response to Schuette’s request for the production of any report.
Now that the Attorney General has appointed William Forsyth as a special prosecutor to investigate MSU’s mishandling of the case, there is hope for an independent investigation. And indeed it is Mr. Forsyth’s investigation that has led to the criminal charges filed against former Dean Strampel in March. Who knows what will follow? Can we hope that part of Forsyth’s investigation will serve as a template on the mistakes a university should avoid. Or is it too much to hope that an institution focused on liability can ever do the right thing?
Sunday, April 8, 2018
Prof. Justine Dunlap continues her series on the repercussions of the Larry Nassar sexual assault case.
Enough is enough. When a man now charged with sexual crimes was the one put in charge of monitoring serial sexual abuser Larry Nassar, it gives foxes who are in charge of the henhouse a bad name. In the present whirlwind news cycle, which over the past few weeks was surely whipped into a feverish state, one could be forgiven for missing the arrest of William Strampel, age 70, the former dean of Michigan State University’s College of Osteopathic Medicine. Strampel was arrested and detained overnight on March 26th on a four-count criminal complaint that includes an allegation that he did not enforce protocols put into place by the university to guard against further offenses by Nassar.
In his decanal role, Strampel supervised the MSU Sports Medicine Clinic where Nasser abused girls and young women. This supervision was especially key after a 2014 investigation into complaints against Nassar resulted in the university requiring, among other things, that Nassar conduct “procedures of anything close to a sensitive area” only with another person present. Sadly, we now know that having an adult in the room did not stop Nassar, who abused his victims while they were covered up with items such as towels. But perhaps if Nassar thought the adopted protocol, which was also sent to a person in the university’s Title IX office, would be rigorously enforced, he might have ceased his activities for fear of actual apprehension. But Nassar may well have known that he had little to fear from Strampel’s oversight. After all, since Strampel said during a 2016 meeting concerning that he didn’t “think any of the women were actually assaulted by Larry,” one can only wonder what he said privately to Nassar.
The charges were brought by William Forsyth, the special prosecutor appointed by the Michigan Attorney General to investigate how MSU may have botched its handling of the Nassar affair. In addition to counts related to improperly supervising Larry Nassar, Strampel has also been charged with sexual misconduct of his own, based on a long pattern of degrading, intimidating and sexualizing female medical students. Additionally, nude pictures and pornographic videos were found on Strampel’s MSU work computer. Suffice it to say that, in light of these allegations against Strampel, it appears that the university placed one predator in charge of monitoring another predator.
Tuesday, January 30, 2018
It’s hard to know where to begin when considering the horrific abuse perpetrated by Larry Nassar. The failure of the adults to believe the young gymnasts who came forward or, worse yet, who cautioned the girls not to pursue the matter. The failures of the institutions involved, including Michigan State University and the U.S. Olympic Committee. Ramifications now being wrought owing to those failures. The obscuring of the crimes even as the numbers of victims went from one to a few to dozens to more than a hundred.
The perseverance of the victims to push forward—and here a shoutout to survivor Rachel Denhollander is deserved, as she—now an attorney—was the one who finally got the situation out of the shadows.
How about the sheer temerity of Nassar to carry out these actions in this flagrant way; no stealthy actions here as Nassar molested them with their parents or his colleagues in the room. Add to that the position that Nassar had, the esteem in which he was held, and his straight-up normal or even meek appearance. He certainly did not look the part. That guy wouldn’t abuse his patients. That guy wouldn’t have child pornography on his computer. And how could a medical treatment be legitimate when girl after girl brings forward assertions of sexual assault. How is that believable the 30th time, the 61st time, the 122nd time, or the third or fourth time?
The conflict of interests here uncovered may ultimately be astounding. To whom were these complaints made? And to whom did those people owe fealty? Were there proper systems and procedures in place? Were they clear? Were they followed? Will they be fixed?
What about the girls? What courage it took for them to tell someone; how many times might they have replayed it in their mind…could that have happened ....but it was Dr. Nassar and he wouldn’t have done that….but I know what I experienced. So they came forward and were dismissed. It is what commonly happens: we do not believe the victim. Especially this type of victim in this type of case. So we add damage upon damage. But their strength remains constant. It is fitting that their names are now painted in homage on a rock at MSU.
What about the parents? Can you imagine? Entrusting their children to the care of this esteemed doctor who would help them remain injury-free or who would, alternatively, minister to their wounds. The guilt that must haunt those parents, whose primary job it is to keep their children safe.
And the good doctor. Who did these acts over decades, survived multiple investigations, listened to the victims’ statements, had already been convicted of and sentenced for child pornography charges and STILL wrote to the judge, “Hell hath no fury like of a woman scorned.” Nearly unbelievable. And the judge herself. Was her behavior too much to be impartial?
What about the journalist who pursued the case, seeking justice? What about the current Department of Education, which will be reviewing the way MSU handled this. What about the dominance and protection of sports in a collegiate setting. Too many What Abouts…
Yes, it is surely hard to know where to begin.
Monday, November 6, 2017
Editors' Note: This post is part of the symposium examining where we are one year after the presidential election.
by Prof. Justine Dunlap
Not too long ago, in a galaxy not too far away, I was contemplating some of the improvements in the law, procedure, and culture concerning intimate partner violence. In particular, I was pondering why those improvements had not yielded as much change as one might have hoped and had too often resulted in adverse unintended consequences to the survivor.
I concluded that implicit bias, which for these circumstances I termed soft misogyny, was a primary culprit. One of the solutions, therefore, was for people to start acknowledging implicit bias and to examine ways to counteract it. Familiarity with the work of Mahjarin Banaji, one of the founders of Project Implicit, made me hopeful. Heck, even the title of the book she co-authored--Blind Spot: The Hidden Biases of Good People—suggested that we could do better. We can become of aware of our biases. Then once aware, we can work to counteract and nullify them.
In this current era, however, with the coarsening of so much discourse and the re-emergence of hard misogyny, I now find myself wishing for “only” soft misogyny. In our President, we have a man whose objectification of women, even his own daughter, is out in the open for all to see. A man who bragged about sexual assault, dismissed it as meaningless locker-room talk, and was elected president.
The hard misogyny was also clear in the treatment of Hillary Clinton in the presidential race. Sure, soft misogyny was there too—I had to examine some of my concerns about Clinton to see my own implicit bias was at play.
But the simultaneous demonization and disqualification of Ms. Clinton by many on the basis of her gender surely flips the switch to hard misogyny. We could start with Ted Cruz’s reference to her deserving a spanking and end a long while later after reviewing the virtually endless sexist and often violent references. To make matters worse, some of the misogynistic language and behavior seems mild compared to the racial hatred that it is now acceptable to spew.
The President has made division and hatred great again. The “other” looms large as America’s boogeyman. The biases that everyone has are things to be celebrated and revered, not weaknesses to rise above.
I had harbored hope that the weight of the presidency would sober Trump. That it would call to his better angels. That he would gain awareness of the historical and moral nature of his deeds and words. That he would be more circumspect. I was wrong. And now I long for soft misogyny.
Monday, October 9, 2017
“It’s only a piece of paper.” This phrase can used to minimize the value of something. It has been leveled against court orders which can be, it is true, just a piece of paper unless they are enforced. However, it is the piece of paper that grants the right of enforcement, which is very significant indeed.
It would be easy to set forth a list of single pieces of paper that confer important rights. One such piece that would likely make that list is a birth certificate. And it is this particular paper that was the focus of a rather under-the-radar U. S. Supreme Court decision issued on the last day of the 2016-2017 term.
In Smith v. Pavan, the Court, in a Per Curium opinion, reversed the Arkansas Supreme Court in a case that involved whether Arkansas could refuse to list a non-biological same-sex parent on a birth certificate. The state Supreme Court had held that the 2015 U.S. Supreme Court decision in Obergefell v. Hodges did not mandate that the State of Arkansas place both same-sex parents on their child’s birth certificate. Specifically, the Court said that although the Obergefell decision mentioned birth certificates once, the reference was “related only to its observation that states conferred benefits on married couples.”
The U.S. Supreme Court, in reversing, seized on language in Obergefell’s next paragraph which declared that by not being permitted to marry, “same-sex couples have been denied the constellation of benefits that the states have linked to marriage.” Citing the same language that the Arkansas Supreme Court had referenced, then dismissed—the mention of birth certificates as one of the “governmental rights, benefits, and responsibilities” that are conferred on married people-- the U.S. Supreme Court in Pavan wrote that the mention of birth certificates in Obergefell was “no accident” as several of the Obergefell plaintiffs had challenged a state’s refusal to list a same-sex parent on a birth certificate.
The Pavan per curiam opinion explained that its Obergefell case required that now-married same-sex couples could not be denied that “constellation of rights” attendant to marital status, thus refusing to countenance the Arkansas Supreme Court’s narrower view.
This case was issued on the last day of a fairly quotidian term, a term without many cases of import, intentionally planned for fear of a four-four split. Interestingly, by the time of this decision, the Court was again at its full nine-justice strength.
This “opinion of the court” included a dissent authored by Neil Gorsuch, the Court’s newest member. And as Supreme Court watchers began their tradition of assessing the upcoming term in late September and early October, the Pavan case has received a bit more attention for exactly that reason. Since one of the cases identified as a major case of the term, the colloquially named gay wedding cake case, is set to be argued on December 5th, people are looking to this dissent as one way of assessing Justice Gorsuch’s Supreme Court persona.
Regardless of what Pavan says about Justice Gorsuch, is important for what it tells us about what the Court meant in Obergefell. Pieces of paper are important; they confer rights, and obligation, and status.
Thursday, August 24, 2017
In the land of “who’da thunk it,” I find myself voluntarily associating with Arnold Schwarzenegger, Mitt Romney, and Charles Krauthammer. I hereby claim them as allies who are willing to stand against racism, anti-Semitism, and general moral vacuousness.
I recently gave a nod to tennis great Andy Murray as an ally in securing the recognition of women’s accomplishments in tennis---successes that should have been hard to ignore but had been overlooked nonetheless. The Murray shout-out was not much of a reach. However, it is important to find allies in the cause of equity anywhere we can, even if it is a stretch.
In this down-the-rabbit-hole time we live in, Schwarzenegger, Romney, and Krauthammer have all spoken out in different fora against Donald Trump’s post-Charlottesville truck with racists and bigots of all stripes. Although the President has been giving offense for a very long time, his recent assertions, first made after the Charlottesville rally and reiterated at his Phoenix campaign speech Tuesday night, have been both more egregious and led to wider condemnation.
Krauthammer made his views known on a Fox news panel on the same day that President Trump engaged with reporters at an infrastructure week event and made painfully plain his real views on the Charlottesville violence. No longer were the teleprompter-read words of his aides able to prevail. Trump’s comments were a “moral disgrace,” Krauthammer declared, not mincing words. Well said, Charles.
Schwarzenegger gets the prize with the longest and most personal appeal against the most recent and offensive presidential sentiments. In recorded remarks, he spoke directly to different audiences, including neo-nazis and President Trump. His comments to Trump showcased a bit of their rivalry over, inter alia, The Apprentice show ratings, as Schwarzenegger “helped” the President see how easy it is to script a speech that does not equivocate in its condemnation of hate. Schwarzenegger’s comments to neo-nazis were especially powerful, as he recounted growing up on post-war Austria. Go, Arnold, go.
Other conservatives have spoken out, too. Senators Marco Rubio, John McCain, and, recently, Senator Bob Corker--a Trump friend—come to mind. But it is fair to say that many more have remained all too silent; no danger of running out of Profiles in Courage awards this month.
But I get it, conservatives. Commenting on everything would be a fulltime job and, after all, you do want to advance your legislative agenda. But some things simply demand comment and condemnation. The President’s racially loaded remarks and—to my lights—his even worse indulging of the racists and anti-semites fall firmly in the category.
“In the end, we will remember not the words of our enemies, but the silence of our friends,” said Martin Luther King, Jr. Schwarzenegger, Romney, and Krauthammer fit into neither category for me, but I am glad they spoke out and did so forcefully. As white supremacists and neo-nazis feel emboldened in the current climate, more and more people across our wide and divided political spectrum must denounce their execrable views.
Sunday, August 20, 2017
by Prof. Justine Dunlap
More than a fortnight ago, Scottish tennis player Andy Murray made my day. Mr. Murray, during a presser at Wimbledon, matter-of-factly corrected a reporter who asked a blanket question referencing victories at Wimbledon that completely ignored women’s tennis. In asking the question, the reporter said that a particular male tennis player was the “first American player to reach the semi-finals of a slam”… and Murray interrupted to add “male player.” The startled reporter replied, “Beg your pardon?” “Male player,” Murray restated.
So much about this is marvelous, it’s hard to know where to start. First, Murray offered his correction automatically and almost as an aside—albeit a terribly important one. He was just ensuring that the record was accurate. In so doing, his manner was significant. The rather understated way in which he remedied the reporter’s implicit bias (at best) subtly raised the question of how anyone could forget women’s tennis in the age of the Williams sisters. Second, Murray’s lack of drama in his correction allowed—forced?—the reporter to easily adopt Murray’s amendment….”that’s for sure,” the reporter added. Further, after the interchange began making the rounds on the internet, Andy’s mother added her thoughts in a tweet: “That’s my boy.”
So besides the deliciousness of it all, are there any takeaways other than the inherent value in the immediate correction of an error that discounted women’s contributions to the sport? I think there are at least two.
First, the way in which Murray made the correction was, as noted, nearly nonchalant. In this era of heated and hyperbolic rhetoric, a calm statement of corrective fact was an effective balm. As with an orator who lowers her voice to a whisper, or the generally quiet person who only occasionally chimes in, Murray’s audience—as well as his questioner—had no choice but to take notice of what he said. In short, Murray’s manner helped underscore his content.
Second, allies of all shapes, colors, and genders are important. Murray's correction was all the more welcome because he is male. This is especially so when contrasted with the relatively contemporaneous remark by tennis commentator John McEnroe that Serena Williams would be “like 700” if she played the men’s tennis circuit. Male feminists, that’s a good thing.