A federal district court dismissed a lawsuit filed by an former University of Michigan student who violated the University’s Student Sexual Misconduct Policy. A final opinion dated Jan. 5 declared the plaintiff’s claim of a due process violation was inaccurate.

According to court records, U.S. District Judge David Lawson upheld the reasoning behind the appeals board’s decision to expel the plaintiff because it did not violate his underlying due process.

The incident in question occurred at a fraternity house in January 2016 when the victim was a freshman at the University. According to the version of events presented in the case of the former male student, indentified as John Doe in the claim, the woman was served a shot of vodka in the his room upstairs after they met earlier. After the shot, the pair went back downstairs, danced and eventually started kissing before they went back his room. The two then allegedly had sex.

The male and female students’ lawsuits differ in their description of the event. Though the male’s suit said the woman had no problem dancing or talking, her lawsuit described a witness who said she later saw the woman “crying, naked, swaying a lot, with slurred speech, vomit in her hair, a flushed face, and unable to stand or walk on her own.”

Later in the evening, the female went to the hospital, where a rape kit was administered by medical personnel. No criminal charges were made against the male at the time, though it was investigated by the University’s Office or Institutional Equity. The OIE initially concluded the male in question did not violate the sexual misconduct policy in April 2016, though the decision was overturned by an appeals board in May 2016.

Following the decision, the student was expelled from the University. 

The suit against the University by the former male student was filed on Sept. 1. He said he was forced to sign a permanent separation agreement with the University on June 27 based on an “improper and erroneous determination” by a University appeals board made up of two faculty members and a student. Lawson’s decision references a preponderance of evidence considered by the appeals board, including the plaintiff’s inconsistent accounts.

“Nothing about the panel’s rationale for discounting Doe’s testimony suggests that it did so because of his sex or gender,” the opinion reads. “As to Doe’s own testimony, as noted previously, the appeal panel found his account of the sexual encounter significantly less credible because of his abrupt reversal during his interview with police wherein he conceded that his account was ‘wrong’ and the complainant’s was ‘right,’ with the exception that he continued to insist that he never heard the complainant say ‘no sex.’ ”

University spokesman Rick Fitzgerald said he was pleased the federal judge ruled in favor of the University’s process for handling sexual misconduct.

“We are gratified that the federal court affirmed the University’s sexual misconduct process,” Fitzgerald said.

The sexual misconduct policy was updated July 2016, adding changes to definitions of consent, sanctions and the appeals process. An appointed appeals board consisting of a faculty member, staff member and student was replaced with an expert external reviewer with legal knowledge.

Though the policy change was not in effect at the time of the case, Deborah Gordon, his lawyer, said her client would have not been expelled under the updated appeals process and definition of incapacitation in the new sexual misconduct policy.

“My client did have a fair hearing in front of the OIE investigator,” she said. “That was all swept away by this appeals panel. I’m really surprised by the lack of due process rights provided to students whose lives are going to be completely changed forever.”

Gordon applauded the updates, though, which Fitzgerald said were not instituted in relation to the case in question.

“Like so much of the policy, we spent several months looking at other schools’ policies, doing outreach in our community with open forums and meetings,” he said. “Most of the changes grew out of that process.”

In response to Doe’s lawsuit, the female victim — identified as Jane Doe — filed a suit of her own in Washtenaw County Circuit Court on Sept. 21, in which she claimed battery and assault stemming from the alleged sexual assault, as well as a breach of contract over the male’s decision to seek readmission to the University following his agreement to permanently withdraw. Jennifer Salvatore, the female student’s lawyer, welcomed the federal court’s decision.

“It has been very difficult for my client to come forward and go through the university’s process,” she wrote in an email interview. “Then with the respondent suing and attempting to get back into the university after he agreed to withdraw — it injected a lot of uncertainty into her life and her educational experience. She is relieved that his case has been dismissed and is grateful for the court’s swift decision.”


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