Arthur Tarnow, U.S. district court judge, deemed the University of Michigan’s former sexual misconduct policy unconstitutional on Monday.
The lawsuit, Doe v. University of Michigan, was filed in June 2018. The plaintiff, John Doe, a male undergraduate student was accused of sexual assault by a female student in his residence hall. Doe claimed the sex was consensual.
Following the complaint against Doe, the University suspended his degree. Doe alleged this put his academic and professional future at risk without a full investigation in the lawsuit.
According to MLive, Tarnow held it was unconstitutional for the University to suspend Doe before his hearing and decided all students accused of misconduct are entitled to a live hearing and a cross-examination with the accuser.
“There is no dispute between the parties that Defendants’ 2018 Policy denied Plaintiff a right to a hearing,” Tarnow held. “Defendants adjudication of the allegations against him ‘without process … immediately collides with the requirements of the Constitution.’”
Doe claimed the University’s investigative process violated his due process rights because he was not made aware of his accuser’s allegations when the Office of Institutional Equity interviewed him.
In September 2018, shortly after Doe’s lawsuit was filed, the U.S. Sixth Circuit Court of Appeals struck down the University’s single-investigator process in Doe v. Baum, a different sexual misconduct lawsuit. The court ordered the University to create an interim sexual misconduct policy that incorporates cross-examination and a live hearing.
The cross-examination process has been largely criticized on campus with claims it re-traumatizes the survivor by forcing them to face their alleged assaulter.
In June 2019, the University filed a motion to dismiss the lawsuit and claimed the due process argument Doe made was no longer relevant due to the new policy. Though the motion was dismissed, the University maintained the argument.
In October 2019, Doe’s suspension was lifted and he is now re-enrolled in classes at the University.
The University can still proceed with its disciplinary proceedings against Doe through a live hearing and cross-examination.
Doe’s lawyer, Deborah Gordon, said she agrees with Tarnow’s ruling in an email to The Daily. She noted it was the second time a court has struck down the University’s former sexual misconduct policy.
“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.”
University of Michigan spokeswoman Kim Broekhuizen told The Daily the University “will carefully review the order as we consider next steps.”
Daily News Editor Emma Stein can be reached at enstein@umich.edu.