Anik Joshi: Why the University is being sued — and who's to blame

Monday, September 9, 2019 - 2:51pm

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The Michigan Daily

The University of Michigan is being sued right now. Thanks, Obama.

Well, the actual story is a bit more complicated, but the gist of it is that a student is currently suing the University, and the court was seeking a deposition of University President Mark Schlissel up until late August. How did this happen? Well, it goes back a few years and it goes beyond Schlissel and the University.

This entire saga is related to former President Barack Obama and a ‘Dear Colleague’ letter that his Department of Education issued back in 2011. That letter changed the adjudication system for sexual assault on campus in three important ways. First, the standard of proof was dropped from “clear and convincing” to a “preponderance of evidence.” Secondly, the letter enabled double, triple and quadruple jeopardy by allowing the accusations to be tried again and again. Finally, the letter disallowed cross examination by the accuser. All three of these changes made the defendant’s life much more difficult and effectively turned Title IX hearings into kangaroo courts where guilt was determined by accusation or less. 

In addition to being personally odious, these policies may have run afoul of the law, and that brings us back to the University and Schlissel. The Detroit Free Press discussed the problems within the U-M system. A student was about to graduate and had been accepted to the U-M Graduate School for Engineering when he was accused of sexual assault. The University froze his transcripts prior to an investigation, which made moving on from the allegations nearly impossible. This action is antithetical to the principles of justice and due process and demonstrates the problem with the current system of Title IX policies relating to sexual assault. These were changed after the aforementioned ‘Dear Colleague’ letter — namely, that they result in the violation of people’s rights and the destruction of their lives. This student was accused and afforded no chance to clear his name. The punishment was given to him before his trial, which represents a perversion of any justice system. After this, the student turned around and sued the school, which is when Judge Arthur Tarnow sought the deposition of the president. Schlissel and the school had previously been unsuccessful in avoiding this appearance in court, and on June 12, he won an appeal to delay his appearance. 

However, on Aug. 24, a 6th Circuit Court of Appeals panel blocked Schlissel’s required appearance. It is easy to understand why the judge would want to ask the president about policies governing the University, especially when those policies ignore due process, complicating these latest developments. It does lead one to think that, as The Michigan Daily Editorial Board argued in a previous piece, considering Schlissel oversees the policy, he has a duty to be able to explain it. If Schlissel both stood by the policy and felt that the students at his campus follow it, he should have taken the opportunity to make those statements under penalty of perjury. His unwillingness to do so suggests that he understands the current Title IX system is incongruous with a society that values rights for the accused as well as a fair trial.

Universities are supposed to expose students to new ways of thinking as well as foster respect for the tried and true methods of the past. When schools don’t do this and fail to foster freedom of speech (like at Middlebury College), or due process (like the Title IX provisions relating to sexual assault that existed between the Obama letter’s issuance and its withdrawal) or any other virtue, they do their name, their administrators and their students a tremendous disservice. Universities are supposed to prepare the leaders of tomorrow, and if Schlissel feels that they don’t deserve due process, he should have appeared before the court to say so. Seeing that he chose not to, he should reconsider whether the policy should exist. 

The road to hell is paved with good intentions and unfortunately, this is no exception. When Obama’s Department of Education issued the letter, they intended to address problems related to sexual assault on campus — and in no way do I mean to minimize the good faith behind that. When former Vice President Joe Biden went on his “It’s On Us” tour to promote the need for men on campus to take responsibility for their actions, I was in the audience and agreed that a culture change was needed. I disagree with him regarding what that change should be. There can be harsher punishments for sexual assault that do not trample on the rights of the accused, which is something that the Obama letter and subsequent guidance did. This type of policy should be pursued and the University president being unwilling (and possibly unable) to defend his existing one in court should serve as a warning to other Universities and their leaders. 

Anik Joshi can be reached at anikj@umich.edu.