Judge orders Schlissel to court in sexual misconduct investigative policy lawsuit

Thursday, May 9, 2019 - 11:09pm

U.S. District Judge Arthur Tarnow has ordered University of Michigan President Mark Schlissel to appear in court.

U.S. District Judge Arthur Tarnow has ordered University of Michigan President Mark Schlissel to appear in court. Buy this photo
Alexis Rankin/Daily

U.S. District Judge Arthur Tarnow has ordered University of Michigan President Mark Schlissel to appear in court June 11 as a result of the Doe v. University of Michigan lawsuit. On Wednesday afternoon, Tarnow turned down a motion from University lawyers which would have overturned the order requiring Schlissel’s appearance.

Tarnow originally ordered Schlissel to court by May 1 during a teleconference with Joshua Richards, a Pennsylvania-based attorney representing the University, and the unnamed plaintiff’s attorney Deborah Gordon, a Bloomfield Hills civil rights attorney. During the teleconference, Gordon echoed Tarnow’s sentiments regarding Schlissel’s attendance in court, while Richards made repeated arguments against the order.

The order came out of a case involving a male undergraduate student who sued the University in June 2018. The student, referred to as “John Doe,” was on track to graduate and had been accepted to the University’s graduate engineering program, in addition to programs at other colleges. The student felt his future was endangered when the University froze his transcript and degree following a complaint of sexual assault against him.

Doe’s transcript was released in June, within a week of the lawsuit being filed.

The allegations trace back to November 2017, when a female student reached out to Doe, a University residential adviser, about getting together. Doe invited her to his room, at which point they watched a movie and had sexual relations. Four months later, in March 2018, the female student accused Doe of sexually assaulting her during the interaction in a complaint filed with the University’s Office of Institutional Equity.

The female student said Doe had nonconsensual sex with her in his residence hall room. However, Doe said in the lawsuit the encounter was consensual and no drugs or alcohol were involved, the Detroit News reported. There were no witnesses to the encounter in question.

The lawsuit aligns with a 2017 ruling regarding the University of Cincinnati, in which a similar case founded exclusively upon “he said/she said” grounds and in which defendant failed to “provide any form of confrontation of the accuser” made the proceeding “fundamentally unfair” to the case’s defendant.

Doe said in the lawsuit he was unaware of the allegations during his interview with the OIE, rendering him unable to respond adequately. Additionally, the lawsuit claimed the University refused the option for a hearing or cross-examination to Doe, even though this is provided to students facing other violations.

Court-ordered appearance

According to court documents, Richards made repeated attempts to sway Tarnow from requiring Schlissel’s attendance in court at the May 1 meeting.

Richards first argued Schlissel should delegate the task because he is not the University official primarily responsible for this policy, though when asked by Tarnow, Richards was not aware of who this University official was. Tarnow said that person is also welcome to attend with Schlissel.

Tarnow also said it is important Schlissel attends because, although he may not be the most well-versed official, he will ultimately have to approve policy changes. When Richards said the approval could also be delegated, Tarnow said “this is the kind of decision that ultimately would have to be at least OK’d by the President.”

Gordon told Tarnow these questions were brought during past discussions, at which point she said Richards stated Schlissel would make all final decisions. Richards denied this.

Tarnow shut this conversation down, saying he does not dispute that tasks are often delegated at a large institution like the University. However, Tarnow said whoever is most knowledgeable about the policy will ultimately report to Schlissel, bolstering the importance of Schlissel’s attendance.

Richards responded to this by saying whoever did attend would have the same authority as Schlissel. Tarnow said he believed him “100 percent,” but this did not change his mind about the order.

Following this, Richards asked for clarification about why Schlissel had to attend. According to court documents, Tarnow said “he didn’t have to explain himself,” but went on to respond to Richards’ inquiry.

“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.”

There was also discussion about Schlissel’s role in notifying the University community of the policy changes, which would further elevate the need for Schlissel’s presence at the actual conference.

Richards then asked if Schlissel could call in to no avail. Tarnow said the University is not far enough away to warrant a phone call appearance.

When Richards asked again, Tarnow responded by saying “it’s less than an hour” drive from Ann Arbor to the courthouse in Detroit.

Tarnow also said he understood the importance of Schlissel’s other meetings and, as he said before, had no issue with offering alternative dates. He then asked about Gordon and her client’s availability, at which point she responded they would clear their schedules for this.

Richards came back to Tarnow on Wednesday and made the argument Tarnow overstepped his discretion and should overturn his order. At this point, the University submitted a motion for reconsideration, asking for another University official to attend in lieu of Schlissel, and for the case to be handed over to a different member of the court. Both requests were denied.

University spokeswoman Kim Broekhuizen wrote in an email to The Daily that the University has nothing to add beyond what was written in the motion.

Schlissel was ordered to attend the settlement conference scheduled for 11 a.m. on June 11.  According to the Detroit News, it is unclear whether this hearing will be open to the public.

A changing investigative process

In the 2017-18 academic year, a student accused of any violation — with the exception of sexual misconduct — would have the opportunity to have a live hearing, per the University code of conduct. In a sexual misconduct case, however, a single investigator would talk to both sides and witnesses, but there would be no opportunity for each side to ask questions to the other.

However, this changed in September 2018, when the Sixth Circuit Court of Appeals struck down the University’s sexual assault investigation model. The court asserted the University “must give the accused student or his agent an opportunity to cross-examine the accuser.”

This decision came out of a University appeal and subsequent cross-appeal from Gordon after U.S. District Judge David Lawson’s ruling in the 2017 court case Doe v. Baum. In this case, Lawson dismissed a lawsuit filed by Gordon’s practice (note, however, this is not the same case as the one Schlissel is being ordered to attend as a part of) on behalf of a former University student, who allegedly violated the University's Student Sexual Misconduct Policy, yet argued his due process was denied.

According to the court opinion, the University of Michigan, as a public university, failed to comply with the holding that accused students must have the opportunity to cross-examine their accuser when credibility is in question.

“If a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder,” the opinion read. “Because the University of Michigan failed to comply with this rule, we reverse.”

The three-judge panel ruled the cross-examinations may be performed in two ways: Either the accused student may directly cross-examine the accuser or an “individual aligned with the accused student” may do so on their behalf.

The University listed several issues with the two options in its court appeal. Specifically, 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.

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

While Gordon agreed at the time of the ruling that bringing an active lawyer into a non-judicial proceeding can be problematic, she wondered why the University had not considered this same issue in all other cases decided at the University, such as bias or racist incidents. Gordon said in this case the University was making exceptions for students accused of sexual misconduct rather than following their long-standing processes.

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.

Two weeks after the appeal was filed, the court declined to re-hear the case. With this decision, the University’s only further option was to appeal to the Supreme Court.

The ruling applies to all colleges and universities in the Sixth Circuit, which encapsulates Michigan, Ohio, Kentucky and Tennessee, thus requiring the schools to reconfigure their procedures for sexual assault hearings and investigations.

In late October, two weeks after the court declined a new hearing, the University announced plans to amend its policy on student sexual misconduct to incorporate an in-person hearing where the students involved in the sexual misconduct investigation can ask questions to each other and witnesses.

The University released a new interim student sexual misconduct policy, which expands the use of additional options and support for students who may not want to pursue a hearing and investigation. A new pathway, called “adaptable resolution,” was outlined in the December 2018 revisions, which took effect Jan. 9, 2019.

The new Interim Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence was also updated to include the option for a hearing. During the investigation process, both the accused and the accuser will be able to cross-examine each other and the witnesses.

Both of these revisions were implemented in accordance with the court ruling. However, Gordon said in an interview with The Daily Thursday afternoon she questions if the interim policy actually aligns with the court’s ruling.

Gordon said the language and processes in the University’s new policy is why Doe’s case remains important, even after the rulings in the other two cases. The goal of her case and the upcoming meeting with Schlissel, she said, is to create a policy that all parties agree aligns with the ruling. If this is does not happen, Tarnow will step in.

Under the interim policy, students wishing to resolve cases of sexual misconduct have two options: traditional investigative resolution, which involves now an in-person hearing, or adaptable resolution. An adaptable resolution must be voluntary on part of both the claimant and the respondent and must be approved by the Title IX coordinator. If the case is successfully resolved, the respondent does not incur a disciplinary record.

Adaptable resolution has been available under the SSMP since the August 2013 iteration of the policy, but it has been referred to in policies prior to 2019 as “alternative resolution” and “informal resolution.” The 2019 interim policy was created with the goal of naming the resolution as “adaptable.”

On Jan. 29, President Schlissel published a letter online stating, although the University has changed its policy, he believed the court ruled incorrectly. Even as the University complies with the law, he wrote he found using hearing officers to question all parties and witnesses involved based on input from both sides is “the best way to determine the truth and minimize harm to all students involved.”

“The change was necessary to follow the law, but U-M respectfully submits that the Sixth Circuit got it wrong,” Schlissel wrote. “In fact, even one of the three judges on the panel dissented. It is our hope that any rule changes will not nationalize the challenges presented by this case by taking a one-size-fits-all approach.”

Director of the Sexual Assault Prevention and Awareness Center, Kaaren Williamsen, wrote in an email to The Daily when the revisions were created that the policy changes were motivated by student feedback. However, the student group Jane Roe wrote a petition calling for the University to adjust its new policy, which was created to align with the ruling. The petition received nearly 65,000 signatures.

Tarnow said during the conference call this case — and by extension the University’s sexual misconduct investigative policy — is one of the biggest issues facing the University at the moment and, with its national implications, should be treated as such.

“Let me say this: This should be more important to him than almost anything going on at the University,” Tarnow said. “I am not sure I would understand anything else being more important than resolving what is a hot-button issue at every university in this country.”