University appeals Sixth Circuit Court of Appeals ruling regarding sexual assault hearings

Sunday, September 30, 2018 - 3:17pm

The University of Michigan has appealed a court ruling that mandates the University allow students accused of sexual assault to directly question their accuser. The University claims the ruling will not only discourage survivors from coming forward but will also be unfair to students with lower incomes.

In the federal Sixth Circuit Court of Appeals ruling, the court held the University partial against students accused of sexual misconduct. The ruling claimed the University violated the due process rights of a male student accused of sexual assault because it did not allow him to directly question his accuser.

Deborah Gordon, the accused student’s attorney, said the University is making exceptions for students accused of sexual misconduct rather than following their long-standing process.

“The University provides everyone with cross-examinations except students accused of sexual misconduct,” Gordon said. “Why would it be any different for them? It’s a longtime policy, but now the University says you can’t do that (direct questioning of accuser) when you’re accused of sexual misconduct … Yet, students accused of sexual misconduct have the most severe punishment.”

The three-judge panel ruled the cross-examinations can take one of two forms — either allowing the accused student to directly question the accuser or allowing an “individual aligned with the accused student” to cross-examine the accuser.

In the court appeal, the University found several issues with the two options. The University argued allowing the student accused of sexual assault to directly question their accuser would both inhibit future victims of assault from coming forward as well as create an unprofessional environment.

“Students are not trained in cross-examinations, and allowing an accused student to confront the complainant directly may subject an alleged victim to further harm or harassment,” the University’s brief read. “Indeed, fear of having to confront, and discuss in detail, a sexual assault with the very individual accused of having committed the assault may well lead alleged victims not to report cases in the first instance.”

Alternatively, Gordon said in the three cases — two of which are ongoing — she has brought against the University in the past few years, the University has continually failed to answer her question: “Why are cases of sexual misconduct at U-M the only cases that do not involve cross-examination?”

“The reason that they are too afraid to say is that they are trying to protect women,” Gordon said. “In my opinion, it’s a complete degradation of women. The hidden reason is they think they don’t want to expose female students to that. The University thinks they have to protect women who are somehow less capable than men to go into a hearing facing men. I think U of M women are more than capable of sitting down at a hearing and bringing out the truth.”

In the appeal, the University also argued allowing a third party associated with the accused student to question the accuser will create an unfair and hostile environment.

“Requiring universities to allow cross-examination by counsel will convert disciplinary proceedings into full-scale adversarial hearings, with the university forced to preside,” the University’s brief read. “Moreover, the panel opinion introduces new opportunities for unfairness, with economically advantaged parties likely represented by counsel, and others essentially appearing pro se or with only non-lawyer family members or support persons.”

Public Policy senior Lena Dreves said she sees significant issues with allowing students accused of sexual assault to directly question their accuser, especially if students are allowed to bring in a professional advocate.

“(T)he University must take the lead when it comes to defending the most financially vulnerable students on campus, especially those who may not be able to hire a lawyer,” Dreves wrote in an email. “It is incorrect to assume that due-process cannot be accomplished by a third party cross examination. These are not full-on judicial proceedings, nor should they be. To allow the accuser the option of hiring a lawyer and directly confronting the accused would not only add complexities for survivors coming forward, but it would give advantages to the ‘financially better off’ student.”

While Gordon agrees bringing an active lawyer into a non-judicial proceeding can be problematic, she wonders why the University has not considered this same issue in all other cases decided at the University, such as bias or racist incidents.

“(E)conomic inequality could be an issue in any case,” Gordon said.

Despite appealing the ruling, the University did acknowledge they must allow a type of hearing process for students accused of sexual misconduct. As an alternative to direct cross-examinations, the University said the best course of action would be written questions addressed to both parties that would go through a third party examiner.

In an interview with The Daily last Monday, University President Mark Schlissel said the University is looking to protect all students throughout the process.

“We are concerned that a procedure that requires a person who is bringing a complaint to confront the person who they think is responsible for an act of misconduct may really have a very difficult effect on people’s willingness to step forward and seek help and bring a complaint,” Schlissel said. “So, we’re looking for ways that will allow us to satisfy the requirements of the court ruling, to allow some kind of hearing, but to do it in a way that is as sensitive as possible to all of the parties who are involved in the complaint.”

In the University’s response, they highlighted the gravity of the situation, stating the court’s decision would have ramifications for all universities.

“This ruling will have a significant impact on all educational institutions within the Circuit and will raise the cost, and prevalence, of Title IX litigation,” the brief read.

Public Affairs Representative Dana Elger responded to a comment on behalf of the University’s Sexual Assault Prevention and Awareness Center, saying the center was unable to comment on the situation due to the pending litigation.

The court’s ruling comes after a case filed June 4 on behalf of an anonymous male student.  According to the case, a female U-M student approached the University Office for Institutional Equity on March 12, accusing the male student of sexually assaulting her in November 2017.  The male student claims the two students’ relations were sober and consensual.

According to the lawsuit, due to the allegations of sexual misconduct, the University put the male student’s transcripts on hold, temporarily keeping him from officially committing to a graduate school. The student’s lawsuit challenged the University’s investigative model and the alleged withholding of the student’s transcript.