UM president Mark Schlissel addressed the federal appeals court ruling during the Thursday, Sept. 20, Board of Regents meeting.
ANN ARBOR, MI – The University of Michigan plans to seek a re-hearing from a federal appeals court panel that ruled in favor of a student who sued the university after being kicked out of school over sexual assault allegations.
The U. S. 6th Circuit Court of Appeals ruled earlier this month that the university may not find a student guilty of sexual misconduct in a he-said-she-said situation without giving the accused, or their representative, the opportunity to directly question the victim.
UM president Mark Schlissel addressed the ruling during a Thursday, Sept. 20 Board of Regents meeting, noting the university would also ask judges to “clarify that no student has a constitutional right to direct cross-examination” in light of its ruling.
“While we believe that our current single investigator model is fair and consistent with prior legal precedent, the Sixth Circuit has disagreed,” Schlissel said. “The university is always striving to create a safe educational experience for all of our students, while also providing policies and procedures that protect the rights of all of our students.”
Schlissel later advocated for cross-examination in sexual assault hearings, but in a less intrusive setting.
“We believe that an appropriate and lawful hearing model is one in which cross-examination is allowed, but in a less intrusive, more trauma-informed manner that allows parties to submit written questions through a neutral hearing officer to ask of the other party and witnesses,” he said.
UM student accused of sexual misconduct may question victim, appeals court rules
The court’s ruling states that 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.
“Our circuit has made two things clear: (1) if a student is accused of misconduct, the university must hold some sort of hearing before imposing a sanction as serious as expulsion or suspension, and (2) when the university’s determination turns on the credibility of the accuser, the accused, or witnesses, that hearing must include an opportunity for cross-examination,” the ruling states.
While the ruling applies specifically to a case out of UM, the decision could have implications at university campuses across Michigan and beyond.
A growing number of universities, including UM and Michigan State University, in an effort to shield sexual assault victims from their attackers and to encourage victims to speak up, have established policies that deprive the accused, usually young men, of their constitutional right to cross-examine, argues Bloomfield Hills-based attorney Deborah L. Gordon.
Gordon represents an anonymous former UM student, named only as John Doe in court filings, who was kicked out the university based on allegations that he had non-consensual sex with a woman, also a student, while she was drunk during a fraternity party on Jan. 16,2016.
The woman filed a sexual misconduct complaint with the university. The allegations were initially ruled to be unfounded, but the woman appealed and the decision was reversed.
The male student, who at the time held a 3.95 GPA and was 13.5 credit hours from earning his degree, was forced to withdraw from UM on June 27,2016, according to the original complaint .
In September 2016, the student filed a federal lawsuit asking UM to grant him his degree. He argued that the sexual misconduct finding was erroneous, partially based on the fact that he was never able to defend himself before the appellate body or question the credibility of his accuser’s claims.
John Doe, according to the appeals court ruling, claimed he and the female student were kissing, and decided to go up to his bedroom to have sex. Afterwards, he left for an extended period of time and returned to find the woman distraught, he believed because he left her alone in the bed shortly after their sexual encounter.
The woman describes the encounter very differently, claiming she said “no sex” before she “flopped” onto the male student’s bed.
In January 2015, U. S. District Judge David M. Lawson ruled in favor of UM. The case was dismissed.
The Court of Appeals also ruled on a second aspect of the original complaint. The student claimed gender discrimination, alleging that the U. S. Department of Education, student groups and the general public are encouraging universities to be overzealous in their investigations of men accused of sexual misconduct.
Sixth Circuit Court Judges Amul R. Thapar and Julia S. Gibbons issued the majority decision. Judge Ronald L. Gilman dissented in part, writing that the decision to grant the accused or the representative a chance to cross-examine their accuser is a “bridge too far,” as precedent has already determined that due process may be afforded at the university level without the benefit of an attorney.
