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experiences
negotiating
these agreements with the
University and other entities.
“Non-disparagement
agreements
prevent
the
public
from
knowing
(of)
all kinds of harassment and
discrimination,” Prescott said.
“These aren’t proved-in-court
wrongs, but they are things
that the two parties agree may
have gone wrong. And usually
they exist without the payer
agreeing that something has
gone wrong.”
Fitzgerald confirmed that
these
agreements
are
not
routinely
disclosed
to
the
Board of Regents or the public.
“We
can’t
comment
on
the
specifics,”
Fitzgerald
said. “But again, routinely, I
can only tell you what is the
pattern. And that is that these
kinds of settlements do not
require Board approval.”
The 10 agreements obtained
by The Daily, furthermore,
do not necessarily represent
all
settlement
agreements
reached during this period.
Nine of these agreements were
obtained by The Daily through
a Freedom of Information
Act
request.
This
request
was limited to agreements
signed by two Senior Human
Resources
representatives,
Roberta
Young
and
Linda
Dabrowski.
(Neither
Young
nor Dabrowski responded to
The Daily’s email requesting
comment for this article). The
10th has already been publicly
reported.
It
also
remains
unclear
whether this sum represents
the
University’s
total
expenditure
on
settlement
agreements over this period
of time. A review of the
University’s
fiscal
year
2018-2019 budget reveals no
specific designation for these
payments.
In an interview with The
Daily, Fitzgerald said these
costs
are
not
specifically
designated in the 2018-2019
budget
because
they
are
divided by school or unit. He
also said these payments are
typically listed as salaries.
“The payments themselves
are usually borne by the unit
where the employee works,”
Fitzgerald said. “Depending
on the situation, you wouldn’t
typically
find
the
money,
because it’s a part of that
departmental budget.”
As such, the money from
these settlement agreements
do not show up in public
reports on the University’s
budget.
“Separation
agreements
with individual employees are
not routinely reported to the
Board,” Fitzgerald said.
The
Daily
contacted
all
10 former employees in the
agreements reached between
November 2018 and April 2019.
All declined to comment. The
nature of their agreements
prevents
them
from
disparaging
the
University
and discussing the terms of
the agreements.
The Daily spoke with New
Jersey-based
employment
lawyer
Neil
Mullin,
an
outspoken
critic
of
non-
disparagement
and
non-
disclosure
agreements
and
Gretchen Carlson’s attorney
in
her
sexual
harassment
lawsuit against Fox News. He
criticized these agreements
for promoting a culture of
secrecy.
“If you want to eradicate
discrimination,
harassment
and sexual misconduct, you
should let the light of day
shine,” Mullin said. “Taxpayer
money is being used to protect
harassers and discriminators.
Taxpayers should speak up
about this.”

AN ISSUE OF ACADEMIC
FREEDOM

Prior to his removal, St.
John was celebrated for his
successes in education policy
while at the University. He
had played a pivotal role in
establishing partnerships with
Detroit Public Schools and
aided in the granting of awards
and partnerships totaling over
$3 million.
St. John has long been
considered an expert in higher
education policy. By the time

he came to the University of
Michigan in 2004, St. John’s
focus research had moved to
diversity in education.
The vice provost placed
St. John on the Provost’s
Achievement Gap Task Force.
His opinion was sought on
issues of inequality at the
University. He served on this
committee
with
Deborah
Ball, his dean, and Stephen L.
DesJardins
and
Annemarie
Palincsar,
both
School
of
Education colleagues.
The Daily reached out in
an email to Ball, DesJardins
and Palincsar. All declined to
comment for this article.
The Daily obtained a copy of
St. John’s court filing. In this
document, St. John details
a meeting he had with Dean
Ball on March 8, 2010, about
his teaching. The filing claims
Ball said she was removing
him from his teaching position
— meaning he would still be
employed by the University,
but not allowed to teach —
based on “new information”
she’d acquired. As St. John’s
filing notes, he was given
“no warning, no ability to
prepare to notify his students,
teacher assistants, or staff
about the modifications to his
employment.”
He also noted his teaching
evaluations
had
been
“consistently
higher
than
the
(School
of
Education)
average.” After contacting his
former students, he “received
strong
support
that
his
teaching style … was engaging
and to the highest level.”
Disagreements
around
diversity strategies in these
meetings underlie St. John’s
lawsuit. He describes them as
issues of “academic freedom.”
“I ran into a problem with
respect to an academic freedom
question,” St. John said. “The
new dean got involved in some
similar committees and so
forth and they began taking
it in a direction that I felt
was inappropriate … It was an
infringement on my teaching.”
St. John knew it would
be difficult to win a lawsuit
against such a large institution,
but he saw this as the only way
to get his teaching rights back.
“When someone brings a
case, you go from the area
of public discourse to closed
litigation,” St. John said. “You
know before you do it that
you can’t exactly sue your
institution. I just felt that
there was a bigger problem in

my department.”
St. John said the only way
to continue to speak publicly
about his experiences at the
University was to reject this
settlement offer.
“I refused to take money
if it meant not speaking as
I am now,” St. John said.
“Universities
just
calculate
what they think the value of
something is and then they
make you stay quiet.”
These settlement packages
are similar to those in the
corporate
sector,
St.
John
explained.
While
this
might have offered him a
more profitable and switch
resolution to his case, he was
uncomfortable sacrificing his
rights to speech.
“In the private sector we
used to call them blowout
packages,” St. John said. “I
just could not see ending my
career that way. Money wasn’t
an issue.”
These potential agreements
are essentially an admittance
of guilt, St. John said. Such
settlements are an easy way
for any institution — especially
a large university with an $11.9

billion dollar budget — to keep
these wrongdoings private.
“In a general sense, once
they start making offers, they
are admitting they’re wrong.
But you can’t speak to it,”
St. John said. “Corporations
— and universities are now
corporate entities, even public
institutions like Michigan —
do what they can to cover their
tracks.”

THE AGREEMENTS

The
terms
of
the
10
agreements
The
Daily
obtained
through
a
FOIA
request are nearly identical.
The
employee
agrees,
“to
the extent allowed by law,
not to make unfavorable or
disparaging communications”
regarding the University.
Fitzgerald
characterized

these agreements as a mutual
understanding between the
University
and
a
former
employee to “be civil” about
their potential disagreements.
“It’s … a way of being nice
to each other, sort of being
civil about this,” Fitzgerald
said. “It’s not meant to silence
people; it’s meant to not get in
a fight with people once they
settle.”
Mullin, however, spoke of
the silencing effects of these
agreements.
“They conceal from the
public a public danger and
wrong,” Mullin said. “Non-
disclosure agreements — or
NDAs as we call them — allow
bad actors to remain in the
workplace
because
people
don’t know about them.”
In her work representing
clients alleging harassment
and
discrimination,
Prescott
frequently
learns
the
identities
of
alleged
perpetrators, but the rest of
the public stays in the dark.
She questioned the balance
between the public’s right to
know about wrongdoing and
the University’s rights to keep
complaints confidential.
“How do we balance those
interests around individuals’
ability to resolve something
and the public’s interest to
know what is going on?”
Prescott said. “I drive around
Michigan, and I look left,
and I look right, and I see a
company who has harassed
some racially or sexually, and
I can’t talk about it. And I kind
of think to myself, ‘That place,
I’ll never do business with
them.’ But nobody else ever
knows.”
The
agreements
also
contain
a
non-disclosure
provision: The employee and
University “will not disclose
(the
agreement’s)
contents
to third parties except as
required by law.”
Fitzgerald
disputed
the
idea that this clause is meant
to limit the disclosure of

this provision. Its intent, he
explained, is to allow for the
release of the settlement under
the Freedom of Information

Act.
“We use (FOIA) as the
process to release information,
so we see that as a way to
provide information through
an orderly process that is …
consistently applied to similar
documents,” Fitzgerald said.
“It’s actually not uncommon
for
employees
to
actually
want
more
confidentiality,
but
the
University
always
includes that phrase in these
separations agreements.”
Ally Coll is the president
of the post-#MeToo lobbying
organization
the
Purple
Campaign and the author of
a Washington Post editorial
about sexual harassment law.
In an interview with The Daily,
Coll spoke of the detrimental
effect non-disparagement and
non-disclosure provisions can
have on an employee’s ability

to
explain
their
previous
employment history.
“When you use those two
practices
together,
it
has
the effect of keeping people
silent about this misconduct
and
underlying
treatment,”
Coll said. “A lot of times non-
disclosure agreements keeps
them (from) … speaking out
about how their agreements
get resolved.”
These
agreements
were
negotiated
either
when
employees agreed to retire
from
the
University
or
when they sought to pursue
employment
elsewhere.
If
employees
sought
work
elsewhere,
the
University
included
a
commitment
to neutral references. The
meaning of “neutral reference”
remains unclear.
Coll explained that with
this clause, these agreements
would leave a hole in an
employee’s resume as they
sought employment elsewhere.
“They can’t explain the
circumstances under which
they left their previous job,”
Coll said. “It creates a hole in
their resumes and … with a
non-disparagement clause on
top of it, it is really difficult in
a job interview.”
Some of these agreements,
particularly
those
to
lower-level
employees
who
previously
drew
smaller
salaries, contain a provision
commonly
referred
to
as
a “no-rehire” clause. This
clause prevents the employee
from any future employment
at the University of Michigan.
“There
may
be
circumstances, with whatever
is leading to this separation,
that would say, ‘This is a person
that we should not rehire in
another position,’” Fitzgerald
said. “It doesn’t mean you
can’t be rehired somewhere
else, (it) just means you won’t
be rehired at the University of
Michigan.”
Coll
described
no-rehire
provisions
as
problematic,

particularly
with
lower-
income workers in lower-level
positions.
“I think no-rehire clauses

are particularly nefarious,”
Coll said. “It basically removes
all of these future potential
employers who are the types
of
employers
where
your
experience is going to be more
relevant … We see people get
locked out of entire industries
that way.”
In
the
context
of
the
University, Coll noted that
these would prevent these
employees from working in
another school or unit.
“Where are they going to
find another job? If you’ve
moved
your
whole
family
there and it’s not really an
option to move to another city,
then you might be interested
in finding a position in a
different department where
your harasser doesn’t work,”
Coll said. “If (the University)
is taking that away in these
agreements,
that’s
further
limiting
(the
employee’s)
ability to move on.”
The
agreements
also
contain a provision ensuring
that employees cannot take
future legal action against the
University.
To make sure employees do
not break their agreements,
Coll said organizations often
times send cease-and-desist
letter.
“Often times, what you’ll
see
is
organizations
will
use cease-and-desist letters
as a first step if they just
have a rumor that somebody
is speaking about it,” Coll
explained.
“A
cease-and-
desist letter is a warning shot
— a legal letter saying, ‘If you
don’t stop speaking … we will
take legal action.’”
Should the University claim
the employee has broken this
portion
of
the
agreement,
the forced arbitration clause
prevents resolution of this
claim in the court system.
Arbitration is sealed, meaning
these disputes would never
become public.
In some agreements, the
University’s
obligations
to
uphold the non-disclosure and
non-disparagement
portions
of the agreement, unlike the
employee, fall under neither
potential monetary penalties
nor forced arbitration.

THE EFFECTS

Non-disparagement
and
non-disclosure
agreements
have garnered public criticism
in the wake of the #MeToo
movement, as reporters have
revealed how famous men
such as Harvey Weinstein,
Matt Lauer and Bill O’Reilly
used these legal devices to
prevent the disclosure of their
alleged sexual harassment and
misconduct.
Coll spoke of the scrutiny
these sorts of agreements have
faced over the past two years.
“In the wake of #MeToo,
we’ve
seen
companies
and
state
legislators
and
lawmakers
take
action
to
stop the use of these types of
agreements,” Coll said. “That
has been effective in a number
of settings, but it obviously
hasn’t reached every industry
or workplace.”
New
York,
California,
Arizona,
Vermont
and
Washington have all recently
banned
the
use
of
non-
disclosure agreements, which
includes
non-disparagement
clauses,
in
settlements
involving sexual harassment
or misconduct.
Recently,
New
Jersey
banned
non-disclosure
in
settlements
involving

any kind of harassment or
discrimination,
not
just
limited to sexual misconduct.
Maryland’s
new
law

requires employers with 50
or more employees to publicly
disclose how many of their
settlements include a non-
disclosure provision, among
other requirements.
Tennessee
prevented
all employers from asking
their employees to sign non-
disclosure provisions relating
to sexual harassment as a
condition for employment or
from renewing NDAs.
It is the taxpayer’s right,
local lawyer Sarah Prescott
said, to know how funds
are being spent by public
universities.
“State laws around freedom
of
information
prevents
state actors, including the
University,
from
shielding
payments,” Prescott said. “If
there’s a payment of money,
those
can’t
be
concealed
because it is the taxpayer’s
dime, and taxpayers and other
citizens have a right to know
where the money is going.”
Prescott
cautioned
that
these
agreements
can
be
effective in shielding both
taxpayers and the University
from huge legal fees.
“How
much
was
the
exposure for the taxpayer
that was resolved with that
$1 million in payouts? There
might have been $8 million
in exposure … The University
might have … managed that
liability in a very effective and
efficient way,” Prescott said.
“I can make a good case that
the University has examined
potential wrongs and potential
damages and has made a good
case to right the wrongs and
address it.”
When
asked
why
an
employee in an agreement
might not be willing to speak
to
The
Daily,
Coll
noted
the power balance between
the University and former
employees when it comes to
legal resources.
“An institution that has
many lawyers at its disposal,
that’s the power disposal that’s
at (play),” Coll said. “There’s
a huge power differential at
play here, both legally and
financially, on both sides.”
Should
the
University
seek to recover damages for
an alleged breach of this
agreement, Coll suggested the
University would be able to
easily recover money paid to
employees.
“The
most
common
situation you see is someone
(being offered) a settlement of
their salary for a year (paid)
out in 4 payments,” Coll said.
“If they break their non-
disparagement
agreement,
and they already got two
payments, they would almost
certainly not get any further
payments,
and
they
could
bring an action to recover the
money that was already paid.”
Coll
remains
concerned
these
agreements
suppress
allegations
of
wrongdoing.
She
suggested
they
allow
companies to avoid addressing
potential issues of harassment
and discrimination.
“The
harassment
has
remained
in
the
shadows
and has kept people silent
about
those
issues,”
Coll
said.
“They
have
allowed
organizations and leadership
at
organizations
to
avoid
actually
addressing
the
underlying issue.”
Though
the
University
is a public institution, Coll
compared these practices to
those of a private corporation.
“I’m not surprised to hear
that
large
organizations,
especially
big
schools

operate in many ways similar
to
large
corporations,”
Coll said. “I do continue to
be surprised to learn that
organizations are continuing
to use that practice today,
two years after #MeToo went
viral.”
This problem is not unique
to the University of Michigan,
St. John said. Attempts at
“buying
silence”
happen
across the public and private
sectors every day.
“It’s hard to find a university
where this hasn’t happened,”
St. John said. “If you believe
in students, if you believe
in society, it’s really hard to
tolerate what they are doing.”
Samantha
Small
can
be
reached
at
sdsmall@
michigandaily.com.
Sammy
Sussman can be reached at
sbsu@michigandaily.com.

The Michigan Daily — michigandaily.com
News
Tuesday, December 10, 2019 — 3

It’s hard to find a university
where this hasn’t happened. If
you believe in students, if you
believe in society, it’s really hard to
tolerate what they’re doing.

SILENCE
From Page 1

It’s not meant to
silence people; it’s
meant to not get in
a fight with people
once they settle.

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