Photo: msu.edu

On Wednesday, Michigan State announced that it had settled with 332 survivors of Larry Nassar’s sexual abuse for $500 million. Of that enormous sum, $425 million will be divided among the women and girls, with $75 million set aside for any future Nassar survivors who come forward.

Given the sheer number of women and girls that Nassar abused, and also given the fact that Michigan State employees had ignored several complaints over a period spanning two decades, there’s nothing surprising about that figure. From 1997, when Larissa Boyce said she told MSU head gymnastics coach Kathie Klages that Nassar had abused her during treatment, until Rachael Denhollander filed a criminal complaint with the Michigan State police in August 2016, the school missed chance after chance to stop a prolific sexual predator.

But there was one condition in the settlement that was unexpected—the fact that the survivors agreed to stop advocating for two specific reform bills that are currently being debated and voted on in the Michigan state legislature. The two bills seek to remove governmental immunity in cases involving childhood sexual abuse.

When I spoke to plaintiffs’ attorney John Manly, he sought to make it clear that the survivors weren’t completely abandoning their advocacy of legislative reforms in Michigan. “The victims continue to support statute of limitations reform, et cetera,” he told me. Michigan’s civil statute of limitation in cases related to child sex abuse are the most restrictive in the country, and one of the bills in the package seeks to extend the statute.

“The only area they agreed not to pursue actively was the bills dealing with governmental immunity,” Manly continued. He noted that bills related to governmental immunity were unlikely to pass, with or without the survivors’ advocacy; practically speaking, the survivors didn’t lose anything by agreeing to this condition. “The truth is, nothing was given up,” he said.

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Manly also said via email that this agreement had “no going forward obligation,” which meant that it shouldn’t impact the survivors’ ability to support future legislation related to governmental immunity. If, two years from now, they wished to band together again and push for governmental immunity reform in cases of sexual misconduct, the condition in the settlement should not stop them.

MSU special counsel Bob Young, when asked about the special condition, said that the “agreement was that governmental immunity and (notice of intent) defenses would be preserved so that we didn’t settle for half a billion only to have another set of cases just like it.”

But even if this condition will have little to no impact on the survivors, it’s both telling and troubling that MSU would even try to put this on the table. James Marsh, an attorney for victims of sexual abuse and assault and a member of CHILD USA’s independent commission looking into the institutional failures around the Nassar case, expressed his concern about this.

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“That a state institution [MSU] would politically silence victims and basically pay them to give up their First Amendment rights goes way beyond the current criticism about gag orders,” he told me via text message. This condition was no ordinary “don’t talk about what’s in the settlement” demand; it’s a demand that survivors not exercise their right to petition their elected officials, which is the kind of speech that is especially protected by the First Amendment. “It’s one branch of the government censoring the ability of individuals most affected by this debacle to advocate for legislative change which will affect that branch,” he wrote.

Striking as it is, the condition is not wholly without legal precedent. Another settlement from the late 1980s had an unusual and not dissimilar condition attached.

In the case of Davies vs. Grossmont Union High School District in California, the Davieses, the two plaintiffs who sued agreed that “neither one nor both of [the Davieses] will ever seek, apply for, or accept future employment, position, or office with Defendant District in any capacity.” They received $39,200 as part of a financial settlement.

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A year after the settlement was finalized, Davies decided to run for Governor Board of the District and was elected. But before he could take office, the district sought to enforce the provision in the settlement agreement that explicitly barred him from running and taking office. While that legal issue was being determined, Davies was sworn in in another county. Eventually, Davies was found to be in contempt, and was told to resign and pay the legal fees. He challenged the condition on appeal and the court found that the provision was unenforceable. “We hold that the public policy favoring enforcement of such a provision is outweighed by the public policy served by its non-enforcement,” the appellate court ruled.

But would a court rule similarly in the case of this particular condition in the Nassar-MSU settlement? The answer to that question depends in large part on whether the court believes that the interest in enforcement is clearly outweighed by the public policy against enforcement.

Ramya Krishnan, a legal fellow with the Knight First Amendment Institute at Columbia University, seems to think that in this case, the public interest in hearing the advocacy is significant. “A condition that prevents survivors from advocating for legislative reform raises serious public policy concerns,” she wrote in an email. “While the courts are generally deferential to settlement agreements, they will not enforce terms that clearly violate the public interest. Relying on the First Amendment, courts have a recognized public policy in allowing free speech on important public issues. Responding to sexual abuse is one of the most urgent issues we face. The public has a right to hear from the crucial voice of survivors in this conversation. A provision requiring survivors not to speak—even on a narrow subset of measures—would do significant damage to that interest.”

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Whether or not the provision is enforceable, it seems that MSU was trying to silence the survivors right up until the last possible moment.

[Correction: An earlier version of this article incorrectly stated the outcome of Davies v. Grossmont Union. It has been corrected.]