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6th Circuit reinstated a gender-discrimination lawsuit against it

Miami University in Ohio seems to have learned its lesson after reviewing decisions of the 6th U.S. Circuit Court of Appeals over the past year.

The public university is changing its student conduct process and Title IX protocol to allow students accused of sexual misconduct to “personally” cross-examine their accusers, “rather than channeling questions through the chair of the hearing,” The Miami Student reports.

The email to the student body from Dean of Students Kimberly Moore also says the accused student’s “agent” – presumably a lawyer – can do the cross-examination.

The option is limited to situations where “the credibility of one or more of the parties is at issue and suspension or dismissal is a possible sanction,” she wrote. The change does not appear to be reflected in the university’s publicly posted Title IX protocol for this academic year. It’s not clear how old the document is: A version cached by Google is dated Oct. 2.

A spokesperson for the university provided The College Fix the email from Moore, but did not answer how its procedures may have changed in response to an earlier 6th Circuit ruling.

The university already allows accusers to be in a different room than accused students during hearings, she said: “If in different rooms, we use web-meeting software to communicate (with audio/video or just audio if requested). The hearing panel is involved so that the questioning is indirect.”

The cross-examination requirement and “agent” language comes directly out of a recent 6th Circuit ruling against the University of Michigan, which refused to change its procedures even after the federal appeals court required at least indirect cross-examination in credibility-related cases a year ago.

The Miami spokesperson distinguished the university’s procedures from Michigan’s, which still used a single-investigator model when the 6th Circuit slapped it down. That means one official separately meets with students individually and makes a finding, with no opportunity for the parties to question each other or witnesses in real time.

“We are still working out details, but we’ll still have the option to be in different rooms using the web-meeting software,” she said. “The difference the 6th Circuit calls for in our case is that the panel chair won’t intercede in the student’s opportunity to question.”

MORE: 6th Circuit requires universities to let ‘agent’ cross-examine accuser

Quite significant development: first school in the 6th Circuit that I've seen to change its policies in response to the CA6 @UMich decision:https://t.co/lwb7OWecCl

— KC Johnson (@kcjohnson9) October 3, 2018

But Miami University was the subject of a related ruling this winter, where the 6th Circuit reinstated a lawsuit against the taxpayer-funded university that said it repeatedly favored the accuser over the accused.

The three-judge panel had said the university should have opened an investigation into the accused student’s claim – never formally filed – that his accuser took advantage of him while he was too drunk to consent.

It required the university to turn over evidence to test the accused student’s statistical claims about “patterns of gender-based decisionmaking” in Title IX cases. The panel also agreed that his allegations of “external pressure” on the university to judge male students guilty, by the Obama administration and an accuser’s lawsuit, “support a reasonable inference of gender discrimination.”

The lawsuit and ruling particularly faulted Susan Vaughn, director of ethics, for sitting on a hearing panel in full knowledge that “she was partial” to the accuser. Vaughn also allegedly told the male student he probably sexually assaults women “all the time,” and she didn’t know the consent standard in place at the time.

The 6th Circuit said she could be personally liable for her actions in the case as a government actor. The case was remanded to the trial court that originally threw it out.

Vaughn retired from the position she’s held for more than three decades at the end of the previous academic year. Her office has since been rebranded as “community standards” to reflect a “more proactive and educational approach based on our community’s values and expectations.” It has been led by Ann James since mid-July.

Vaughn is currently running for state representative as a Democrat. She mentions her “32-year career in Miami University’s Student Affairs Division” but has yet to update her LinkedIn page.

The university’s media relations did not immediately answer a request from The College Fix to provide Moore’s email to students and explain how its procedures have changed beyond the addition of direct cross-examination.

Read The Miami Student article.

UPDATE: A spokesperson for Miami University responded to The Fix after this post was published. Her comments have been added.

MORE: 6th Circuit reinstates anti-male bias lawsuit against Miami U.

IMAGE: vchal/Shutterstock

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