Accuser backs out of Title IX proceeding after court orders UMich to allow cross-examination

University ‘solely responsible for trajectory of these events,’ accused student’s lawyer says

When you can make sexual assault allegations with no possibility of being challenged, why wouldn’t you?

After a stinging court ruling last month that ordered the University of Michigan to allow cross-examination and a “live hearing,” the student who accused “John Doe” of sexual misconduct has dropped out rather than face scrutiny.

UMich had appealed the district court ruling to the 6th U.S. Circuit Court of Appeals shortly after it came down. Deborah Gordon, the accused student’s lawyer, told the 6th Circuit in a filing Monday that the appeal was moot because UMich was dropping the Title IX proceeding.

“This case should never have been necessary,” Gordon wrote, noting that UMich’s Title IX policy was found to be in violation of pre-existing 6th Circuit precedent. The university maintains that the courts don’t have jurisdiction over its proceedings until they conclude; John objected that he was subject to an “indefinite hold” that threatened to destroy his future education and career.

Gordon accused the university of sowing “chaos” by suddenly scheduling a hearing in his case for April 22, right before a week of final exams started. He had already relocated to California following the COVID-19 closure of campus, and both parties were set to graduate in May.

UMich pushed back when he asked for rescheduling after exams, making “several false
representations” as to why it couldn’t postpone the hearing, Gordon claimed. A day ahead of a court hearing on John’s emergency motion to postpone his Title IX proceeding, the university “revealed the true reason” for the rush: It wanted to hold his degree.

Less than an hour before its brief was due with the court, UMich’s Title IX coordinator emailed Gordon to notify her the proceeding would be “permanently closed.” John’s accuser informed the university that she “no longer wants to proceed or participate in the investigative resolution process.”

MORE: Judge withholds ‘qualified immunity’ from UMich officials in John’s suit

.@UMich nonetheless is appealing the case to CA6, claiming that district court had no authority to require the school to follow circuit precedent before the disciplinary process had concluded.

— KC Johnson (@kcjohnson9) April 27, 2020

Gordon disputed that the hearing depended on the accuser’s participation, which is not required by university policy: “It was solely the decision of the University – not the student– to close the entire process with no finding.”

The university refused to dismiss its appeal to the 6th Circuit in spite of the case being moot, however, Gordon said: “Their position is legally unsupportable and may be sanctionable.”

She accused the university of false claims and “histrionics” by trying to pin the blame for the two-year litigation on John, rather than its Title IX policy which failed to follow 6th Circuit precedent from the start. (The lower court also swatted down an “interim” policy the university implemented in the middle of litigation.)

The accuser has waited nearly two years while John “and the district court prevent the University from completing its investigation into her allegations of rape and from conducting a hearing,” the university wrote in an April 17 filing. Her departure from “this fitful process” shows why courts should not get involved with “an ongoing process.”

Gordon retorted that the university is “solely responsible for the trajectory of these events,” including two years of substantial disruption to her client’s life and a “significant cloud over him.”

The 6th Circuit must moot the appeal and remind UMich that the lower court’s order “remains intact,” the lawyer wrote.

Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation, speculated that the university was appealing in spite of the canceled proceeding so it wouldn’t have to pay Gordon attorney’s fees.

Gordon told the 6th Circuit that public records requests show the university has spent $1.2 million so far on lawyers just in this case, which is nearly twice as much as it had spent as of last summer.

Univ's primary goal in CA6 appeal seems to be getting the lower court's summary judgment order vacated, so @UMich won't have to pay attorneys' fees in the case.

— KC Johnson (@kcjohnson9) April 27, 2020