Judge finds U-M’s student sexual misconduct policies unconstitutional

A federal judge on Monday found the University of Michigan violated a student’s constitutional rights with a “disturbing … denial of due process.”

The lawsuit involves an unnamed student accused of sexual misconduct against a female student in 2018, and alleges U-M’s process for investigating the claim robbed the accused of due process by suspending the student without a live hearing that included cross-examination.

MLive reports:

U.S. District Judge Arthur Tarnow on Monday, March 23, granted summary judgment in favor of a UM student identified as John Doe who filed a due process lawsuit claiming the university’s 2018 Policy and Procedures on Student Sexual and Gender-Based Misconduct was unconstitutional. The judge found UM’s 2019 interim policy was also unconstitutional for allowing the student to be suspended before a hearing could be held.

The lawsuit, filed in June 2018, alleges a female student raised a complaint against Doe with UM’s Office of Institutional Equity on March 12, 2018, four months after her claim that he had sex with her in his residence hall room without consent.

Doe claims the sex was consensual. The lawsuit alleges the university put a hold on his official transcript and degree, despite no findings being made against him. In June 2018, Tarnow ordered his transcript be released immediately, pending the resolution of the case. Doe’s attorney Deborah Gordon said he has since re-enrolled in classes at UM.

Tarnow cited a previous U.S. Court of Appeals case that deciding a student’s fate before a hearing with cross-examination is a “disturbing … denial of due process.”

The judge ruled that because school officials should understand that, they’re not entitled to qualified immunity that protects government officials from personal liability.

“Because the Individual Defendants violated this ruling and Plaintiff’s clearly established constitutional rights, the Court finds that they are not entitled to qualified immunity,” Tarnow wrote.

The judge’s order found U-M’s 2018 and interim 2019 sexual misconduct policies violated the constitution, but allowed the university to continue with disciplinary proceedings against the student that include a live hearing and cross examination.

Critics contend the hearings re-traumatize victims of sexual assault by forcing them to relive the experience along with the accused.

The student’s attorney, Deborah Gordon, told The Michigan Daily she’s pleased with the ruling, and pointed out how U-M’s bad policies and procedures for handling sexual misconduct complaints is costing students and taxpayers.

“This is the second time in 18 months that the federal courts have struck down University sexual misconduct policies,” Gordon said. “The University knows very well how to guarantee a live hearing with cross-examination; such language appears in its Statement of Student Rights and Responsibilities. Yet the 2018 Interim Policy at issue in this case was, in my opinion, intentionally vague on that point. The failure of the University to guarantee due process for all parties in sexual misconduct cases has cost it millions of dollars in lawyers’ fees and has slowed down that processing of claims.”

U-M spokeswoman Kim Broekhuizen told the news site officials “will carefully review the order as we consider next steps.”

This piece was written by Victor Skinner on March 25, 2020. It originally appeared in and is used by permission.

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