Due Process

Lawsuit Seeks Class Action Status for Students Whose Due Process Rights Were Violated During Title IX Investigations

The lawsuit alleges that MSU has denied due process rights to student defendants in order to placate critics of its sexual assault policies.

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An amended class-action lawsuit filed by a former student against Michigan State University (MSU) could pave the way for more class actions against universities and colleges that violate the due process rights of students accused of sexual misconduct.

Filed by former MSU student "John Doe," the lawsuit claims Doe was "denied equal protection under the law as well as the most fundamental guarantees of due process," when MSU suspended him for two years without giving him a hearing or the opportunity to cross-examine the female student who accused him of sexual assault.

Doe seeks to prove that MSU denied him his rights in order to placate the Department of Education's Office of Civil Rights, which threatened to withhold funding from the university due to its handling of sexual assault cases, and in order to defuse criticism over "a widely publicized report alleging extraordinarily high levels of unredressed sexual assaults against female undergraduates at Michigan State." The suit also says MSU denied Doe his rights in part to due to criticism of the university's employment of Dr. Larry Nassar, the USA Gymnastics physician accused of molesting 250 female children.

Doe filed suit in the United States District Court for the Western District of Michigan, which is in the Sixth Circuit. A 2018 decision by the Court of Appeals for the Sixth Circuit stated that if a student is accused of misconduct, the university must hold a hearing before taking disciplinary action. If the university's decision is based on the credibility of the accuser or witnesses, the defendant must also be allowed to cross-examine the witnesses and the accuser. "Not only does cross-examination allow the accused to identify inconsistencies in the other side's story, but it also gives the fact-finder an opportunity to assess a witness' demeanor and determine who can be trusted," the court said.

Andrew Miltenberg, the lawyer representing Doe who specializes in Title IX cases, said that they are not seeking money, "but to vacate and expunge disciplinary records for anyone that was put on probation, expelled, or any other type of suspension at Michigan State under the same policy of not being able to question the accuser." Miltenberg suggested there could potentially be 200 affected students who might benefit from Doe's case.

The class-action aspect of this case differentiates it from similar cases. Miltenberg says that no one has seen a class action for cases like this because they are generally reserved for consumer issues. "It's not so easy to do a class action because traditionally consumer issues lend themselves to a class action, like breast implant litigation and tobacco litigation." He said if this case is successful, it could open the door for other students in Michigan, Ohio, Kentucky, and Tennessee to sue, as those states are in the jurisdiction of the Sixth Circuit.

"Practically any university in those four states would be subject to the Doe v. Baum ruling. If their policy didn't allow for a live hearing and the ability to confront a witness, you could go to any school and raise this same issue," Miltenberg says. "The hope is that other circuits take note of this and say 'Hey this makes sense, this is right.' I think in that case, it would spread to those other jurisdictions."

Miltenberg explained that the next step in the case is for MSU to respond to Doe's lawsuit, which it has 14 days to do. There is a court conference in September to get the case certified as a class action—although Miltenberg says ideally it would get certified sooner.

"What I hope, more than money or financial damages, is that we stop any erosion of due process," Miltenberg says. "Because it is a very slippery slope."

The Detroit Free Press reports that Miltenberg and his team are looking into cases dating back to 2011, "when the then-Obama administration sent a 'Dear Colleague' letter to universities upping the pressure to run sex assault investigations and spelling out what needed to be done."

As Robby Soave notes, the letter "lowered the burden of proof to a 'preponderance of the evidence' standard, which meant that accused students could be found responsible for sexual misconduct if administrators were only 51 percent convinced of the charges," and "it discouraged allowing the accused and accuser to cross-examine each other."

In 2017 Education Secretary Betsy DeVos withdrew the "Dear Colleague" letter policy saying that "these documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints."

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  1. The Big Ten conference is pro sexual assault!

    S-E-C! S-E-C!

  2. Let’s not forget that Michigan State gave all kinds due process and benefit of the doubt to the doctor who molested all of those gymnasts. At the same time they were protecting one of the most notorious sex offenders in America, they were making up for it by railroading innocent students for fake sex crimes.

    Wonderful institution.

  3. Andrew Miltenberg, the lawyer representing Doe who specializes in Title IX cases, said that they are not seeking money…

    That will teach them.

    1. They just want pounds of flesh.

  4. General suggestion to lawyers everywhere –
    There is significant financial benefit to having a college degree.
    Colleges obtain large amounts of money from students.
    Colleges threaten students to force certain behaviors and words.
    R.I.C.O. Triple damages and all that jazz.

  5. Due process in our higher re-education camps?
    Don’t make me laugh.
    I mean, what next?
    Free speech on our campuses?

  6. Something that I don’t get. All of these accusations are for criminal actions. If they are criminal actions, they should be put on criminal trial with criminal standards of evidence and given criminal penalties.

    The idea of making it a out-of-court personal matter makes a mockery of the idea of justice both for the accused and the accuser. If the man is guilty of rape, then don’t kick him out of school; throw him in prison. If he’s not, then have a proper trial so he can be exonerated.

    1. Yes, but that’s way too simple, and life and love are not simple, Mr. Ben. Plus if a victim of sexual assault has also been the victim of the police, how is the victim supposed to report the crime ? I thought there were rules in this country against double jeopardy ?

    2. Leftists have decided that crimes must be tried by college administrators. Because some crimes are so awful that they can’t be trusted to the criminal justice system, but must be adjudicated by woke academics. They fail to understand that the only punishment they are able to mete out is expulsion and blackballing. Which is enough to ruin someone’s life, but it’s terribly lenient for the type of crimes we’re talking about.

      If I were a rape victim I would be mortally offended by this kind of arrogance. But I’m not in college. Maybe college kids these days actually think mock show trials count as justice. Maybe they think their personal justice must take a back seat to the political theater. I dunno. I just know that if it were me I would need someone to restrain me from seeking my own justice.

      There’s nothing wrong with colleges today that a mass expulsion of administrators could not fix.

  7. I can’t help strongly suspecting that the plaintiffs’ lawyer here intends to reach a settlement with the university that screws victims but pays him a large chunk of money. If I were one of them I’d opt out and file my own suit.

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  9. “Miltenberg and his team are looking into cases dating back to 2011, “when the then-Obama administration sent a ‘Dear Colleague’ letter to universities upping the pressure to run sex assault investigations and spelling out what needed to be done.”

    This was a god send to high minded college administrators, who were given free reign exempt from any notion of “due process” to attack the hyperbolic “rape culture.” Yes, women do get assaulted in college [young + naive + alcohol = risk; I have a family member who was a genuine victim of rape] but this has been a travesty of anything resembling justice, and has in fact done more to harm the credibility of actual victims than any notion of “toxic masculinity.” Dumb bastards.

  10. In 2017 Education Secretary Betsy DeVos withdrew the “Dear Colleague” letter policy saying that “these documents have led to the deprivation of rights for many students

    When the goal is Social Justice (TM), rights just get in the way.

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