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.