The College Fix

‘Inherently unfair’ to prevent ‘credibility’ determination

The University of Michigan operates a “bifurcated system to address student misconduct.” Accused students have the right to a “live hearing” and cross-examination for nonsexual offenses, but not for sexual offenses.

This is a problem for a federal judge in Michigan, who forced the public university to give an accused student a live hearing and “circumscribed” cross-examination of the student who accused him of rape.

Even though “John Doe” has not yet been found responsible by UMich, his lawsuit against the university meets “ripeness requirements” for the court’s consideration, U.S. District Judge Arthur Tarnow wrote in a Friday order granting Doe “preliminary relief.”

Doe faces “immediate risk of expulsion” and the potential of the investigation to “‘impugn [his] reputation and integrity’” if he is ultimately exonerated, Tarnow wrote, citing a binding ruling from the 6th U.S. Circuit Court of Appeals last year.

Doe’s lawyer told The College Fix she was “not aware” of any previous ruling that nullified a “single investigator” model for Title IX cases, as did Tarnow’s order for Doe’s specific case, or how many other cases the order could affect.

MORE: UMich withholds transcript from accused student with no hearing

UMich limits this practice, where a single official makes a judgment based on “private interviews with the parties and witnesses,” to sexual misconduct cases alone, Deborah Gordon wrote in an email.

Tarnow’s order “highlights important deficiencies in the single-investigator model process, which should no longer be utilized to decide cases as serious as sexual assault,” a Title IX consultant told The Fix.

This model “inherently deprive[s] a student of due process, and the Sixth Circuit has already established that the right to a hearing and cross-examination are essential due process rights,” Warshaw Burstein partner Kimberly Lau wrote in an email.

She also didn’t know of any past court ruling that struck down a single-investigator system, but said “several courts have warned” that the model is “inherently unfair and lacks critical examination of the complainant or witnesses,” including courts that ruled against Cornell University and Brandeis University.

As it turns out, Judge Tarnow cited the Brandeis ruling in his order.

Just in: In first-of-its-kind ruling in TIX cases, judge issues TRO ordering @umich to provide acc'd student (facing an ongoing inv'n) with a hearing–as well as circumscribed x-examination of accuser–to replace university's "single investigator" model. pic.twitter.com/gJFpYKwFSA

— KC Johnson (@kcjohnson9) July 6, 2018

University wants the case ‘to rot on the tree’

Doe’s court case has moved surprisingly fast. That’s partly because the ongoing Title IX proceeding could prevent him from enrolling in any of the graduate engineering programs that have already accepted him.

Doe was denied access to his transcripts on the verge of graduation, and filed what’s known as a Section 1983 claim against the university. That means government officials denied his constitutional right to due process, in this case through the university’s Policy on Sexual Misconduct by Students. (The university gave him his transcript after a teleconference with the court.)

Judge Tarnow said Doe was “likely to succeed on the merits” of his claim, and he rejected the university’s argument that the court did not yet have jurisdiction over the dispute.

Doe may be “presently” deprived of sufficient due process in his proceeding, which could result in expulsion. If the judge rejects his motion but eventually finds UMich policies violate due process, Doe will “have been forced to defend himself against serious sexual assault allegations without adequate constitutional safeguards,” Tarnow wrote:

The Court cannot, and will not, simply standby [sic] as the fruit continues to rot on the tree. This case is ripe for adjudication.

Judge orders University of Michigan to give accused student a live hearing, to assess ‘credibility’ by The College Fix on Scribd

MORE: 6th Circuit requires cross-examination in Title IX cases

The judge cited 6th Circuit precedent that requires universities to ensure a minimum level of due process in Title IX investigations, including “the opportunity [for an accused student] to share his version of the events at some kind of hearing.”

In Doe’s case, that means the accused student deserves a live hearing in which he may submit questions to his accuser through an official or the Student Resolution Panel.

Tarnow said the 6th Circuit has not ruled whether this limited form of cross-examination is constitutional “in the absence of a live hearing,” but he noted that “nearly all” other similar cases in the circuit involved a live hearing.

In a dispute that boils down to the credibility of accuser versus accused, the 6th Circuit has called some form of cross-examination “essential to due process.”

Tarnow said the single-investigator model used by UMich does not allow Doe to know “which questions are actually being asked of [his accuser] or her response to those questions”:

Without a live proceeding, the risk of an erroneous deprivation of Plaintiff’s interest in his reputation, education, and employment is significant. Additional procedural safeguards would both assist the truth-seeking process and help to ensure the protection of Plaintiff’s constitutional rights.

No explanation for university’s ‘external reviewer’ override

Tarnow noted that UMich’s own Statement of Student Rights and Responsibilities governs nonsexual offenses, and it already requires “hearings for students accused of misconduct at which they may question witnesses.”

Since it already uses this procedure for one set of offenses, using it for sexual offenses “would be neither fiscally nor administratively burdensome,” the judge wrote.

While Tarnow is aware of the potential “emotional harm and trauma” a live hearing might bring to Doe’s accuser, he quoted a 2016 ruling against Brandeis University in a case involving a gay student accused by his partner. Eliminating such “basic protection for the rights of the accused” to spare victims of sexual assault from “unnecessary harassment” raises “profound concerns,” the court said in that case.

Doe didn’t get everything he wanted: Tarnow declined to order “campus-wide changes” to sexual-misconduct procedures beyond Doe’s case, since he has already received “complete relief.”

Judge notes oddity of @UMich procedures–which grant robust protections to students acc'd of all other, often much less serious, offenses, while denying them to students facing the most serious campus charge: pic.twitter.com/Txk1HDwdxw

— KC Johnson (@kcjohnson9) July 6, 2018

MORE: 6th Circuit blasts refusal to investigate male’s complaints

Rick Fitzgerald, assistant vice president for public affairs at the university, told The Fix in an email that his office had no statement on the “pending litigation” and noted that “the student was provided his transcript earlier.”

Doe’s lawyer Gordon told The Fix the university’s process was tailor-made to discriminate against students in sexual-misconduct cases.

“[T]he appeal process allows an ‘external reviewer’ to ‘modify’ a decision in favor of the accused without ever speaking to or seeing any party or witness, and therefore has no ability to assess credibility and demeanor,” she said:

The University has not provided an explanation for this in any of their court pleadings or at hearings.  They have intentionally carved out a subset of students they apparently believe should not have access to the same due process provided to other students.

MORE: He sexually touched her. The school suspended her for sexual assault.

IMAGE: vchal/Shutterstock

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