This article has been updated to note the settlement conference on June 13 has been changed to be open to the public. 

On Wednesday, attorneys for the University of Michigan filed a motion for dismissal of the Doe v. University of Michigan lawsuit, which claims a male student accused of sexual assault was denied due process under the University’s sexual misconduct policy.

This motion comes almost a week before University President Mark Schlissel is set to appear at a settlement conference with U.S. District Judge Arthur J. Tarnow and attorneys representing both parties.  The meeting is scheduled for 10 a.m. on June 13 at the U.S. District Court in Detroit.

Previously scheduled to be held off the record and closed to outside parties, an order was filed the morning of June 11 stating the meeting will be held on the record and open to the public and the media as Judge Tarnow said “this case concerns matters of public interest.”

According to University spokesperson Rick Fitzgerald, the motion is a standard legal filing and is not related to the upcoming conference, reports MLive

One of the arguments of the lawsuit claims the University’s Office of Institutional Equity refused to offer a hearing or cross-examination to the male student even though these options are available in other resolutions of misconduct. In the motion for dismissal, University lawyers claim the due process argument in the lawsuit is no longer relevant because of changes to the sexual misconduct policy.

Tarnow originally requested Schlissel appear in court by May 1 during a teleconference with Joshua Richards, a Pennsylvania-based attorney representing the University, and Deborah Gordon, a Bloomfield Hills attorney representing the unnamed plaintiff. After Schlissel failed to attend the May 1 hearing, Tarnow decided to require Schlissel’s attendance at the June 13 conference.

“If you want me to put it in writing so the media has it, it will be something like, ‘the President has been requested to participate in a discussion of a proposed rule and has chosen not to appear,’” Tarnow said. “Therefore, I order that he appear.”

On May 1, Richards repeatedly argued against the need for Schlissel to appear in court, arguing the task should be delegated to the primary University official in charge of the sexual misconduct policy. Richards could not name this official when asked.

In response, Tarnow said it is necessary for Schlissel to attend as “this is the kind of decision that ultimately would have to be at least OK’d by the President.” Tarnow also noted Schlissel would be the one notifying the University community of policy changes, further underscoring the importance of Schlissel himself appearing at the June 13 conference.

Tarnow rejected Richards’ request for Schlissel to call in to the conference instead, as Tarnow said Ann Arbor is close enough to Detroit for Schlissel to appear in person. Later that week, Richards asked Tarnow to overturn his order, arguing Tarnow had overstepped his discretion. The University also filed a motion for reconsideration, again asking if another University official could attend. Both of these requests were denied.

Despite initial pushback against Tarnow’s order, University representatives confirmed Schlissel will attend the June 13 conference, though Fitzgerald said requiring the president’s appearance is highly unusual.”

The lawsuit was originally filed in June 2018 by a male undergraduate student, referred to in legal filings as “John Doe.” It stems from a complaint filed against Doe at the University’s Office of Institutional Equity by a female student who alleges Doe, a residential advisor, sexually assaulted her in his residential dorm room.

Doe, a senior at the time, was on track to graduate and had been accepted into several graduate engineering programs, including at the University. Following the allegations against him, Doe’s transcript and degree were frozen, which Doe felt endangered his future academic and professional career. Doe’s transcript was released within a week of the lawsuit’s filing.  

Doe has denied the allegations. He also alleges he was not made aware of accusations against him in his meeting with OIE staff, which he said meant he was unable to fully respond.

This lawsuit follows the precedent set by a 2017 lawsuit involving two undergraduate students at the University of Cincinnati, which also revolved around a case founded upon “he said/she said” allegations. In these types of hearsay cases, the U.S. Sixth Court of Appeals ruled accused students must be allowed some form of cross-examination in accordance with their due process rights.

In September 2018, the U.S. Sixth Court of Appeals struck down the University’s single-investigator model, requiring the University to grant students accused of sexual misconduct the option of cross-examination. Prior to this ruling, the University of Michigan’s sexual misconduct policy included only one investigator who had conversations with the accuser, the accused and witnesses, without opportunity for parties to confront one another.

The University appealed the decision, arguing cross-examination puts lower-income students at a disadvantage and would discourage survivors of assault from reporting incidents to the University. Students also organized against the decision, as they said cross-examination would re-traumatize survivors. The court declined to rehear the case, so the only next step the University could take was to appeal the decision to the Supreme Court.

After losing the appeal, the University announced plans to revise its sexual misconduct policy. In December 2018, the University released a new interim policy, which included an in-person hearing with the accuser and the accused per the Sixth Court of Appeals’ ruling.

The release of this new policy also emphasized the adaptable resolution option for students who do not want to pursue an investigation and in-person hearing, which does not incur a disciplinary record. 

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