“An accused student’s rights must be guaranteed — not left open for interpretation. . . . Imposing a suspension, prior to a hearing and adjudication is unconstitutional.” John Doe v University of Michigan, et al, Case No. 18-11776, March 23, 2020.
That does not appear to be a sweeping or controversial statement – at least it shouldn’t be. But unfortunately in 2020, with the current environment on campuses everywhere, a federal judge must write an opinion that reminds college administrators of this basic premise – one central to the entire legal system throughout this country. Everywhere apparently except campus Title IX sexual misconduct cases.
Michigan is blessed with an abundance of excellent colleges and universities, starting with the University of Michigan and Michigan State. But U of M and MSU seem determined to set the tone for higher education in this state on yet one more field – who can trample more on the due process rights of students charged with sexual misconduct under Title IX.
In the latest development, a federal judge issued an opinion and order declaring a university’s Tile IX sexual assault policy unconstitutional. Again. This time it was U of M’s turn.
John Doe was a graduate student at U of M. He watched movies with a fellow student in his dorm room, and then they had sex. Shortly afterwards, he was accused of sexual misconduct. Doe denied sexually assaulting her, claiming the sex was consensual. There were no witnesses other than the two parties. In other words, a classic Title IX sexual misconduct case.
U of M froze his undergraduate degree and academic transcript after the charge. At that time, U of M’s policy dictated that a single investigator met with each student separately, did interviews, wrote a report and made recommendations. The students had a chance to review interviews and reports and make suggestions, but couldn’t ask direct questions of each other. The hearing process was halted by Doe’s lawsuit, filed in June 2018.
In September 2018, the Sixth Circuit Court of Appeals issued the landmark decision in Doe v. Baum, requiring a live hearing with the opportunity for questioning by the parties when a case involves issues of credibility. In June 2019, U of M adopted an interim policy, requiring hearings “when warranted.”
Judge Tarnow was unconvinced that the changes were constitutionally sufficient, writing that “Defendants’ 2018 Policy is unconstitutional. The possibility of a pre-hearing suspension under Defendants’ 2019 Policy is also unconstitutional.” The key element is that the policy must guarantee a hearing with basic due process protections.
Judge Tarnow reasoned that the policy of when a hearing would be allowed, “when [it is] warranted,” was “vague” and required “further explanation.” The constitution requires that:
An accused student’s rights must be guaranteed — not left open for interpretation. Imposing a suspension, prior to a hearing and adjudication is unconstitutional … the Interim Policy allows the University to impose serious interim sanctions without a hearing. These sanctions can be imposed after a complaint is filed, but before any determination of responsibility has been made.
Judge Tarnow was particularly critical of U of M President Mark Schlissel and his public statements following the Baum decision that, “the Sixth Circuit got it wrong,” and that U of M’s “prior method of adjudicating sexual misconduct cases was the best way to determine the truth.”
Wake up Mark, and all Michigan colleges and universities. We get it, students making accusations of sexual assault are entitled to be treated with dignity and respect. But what you clearly don’t get is that the accused is also entitled to the same treatment, and it does not give you carte blanch to trample on the due process of an accuse student.
This is an area of law that is constantly changing, sometimes by the week. If you have questions about Tile IX misconduct hearings, don’t guess, and don’t take chances. Call the experts at Satawa Law today.