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In Due Process Lawsuit, Appeals Court Sides with Michigan Student Expelled for Sexual Misconduct

If credibility is at stake, "the university must give the accused student or his agent an opportunity to cross-examine the accuser."

MichiganAndrew Horne / Wikimedia CommonsA male student who was kicked off campus has alleged that the University of Michigan did not give him the opportunity to properly defend himself against sexual misconduct charges.

Last week, the Sixth Circuit Court of Appeals agreed that the lawsuit filed by ex-student "John Doe" against the university has merit. In a decision written by Judge Amul Thapar—a judge with a reputation for defending due process norms in cases involving Title IX, the federal statute that sets rules for campus sexual misconduct cases—the court held that Doe's lawsuit should survive a motion to dismiss.

"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," wrote Thapar. "Because the University of Michigan failed to comply with this rule, we reverse [the lower court's decision]."

Thapar's strong defense of the right of the accused to cross-examine the accuser is a timely development. As reported in Reason and The New York Times, the Education Department is currently workshopping a new approach to Title IX that would correct some of the due process deficiencies found in previous guidance issued under the Obama administration. An official with knowledge of Education Secretary Betsy Devos' plans told Reason that the new Title IX guidance would require cross-examination or "an effective substitute."

The Foundation for Individual Rights in Education's Samantha Harris praised the Sixth Circuit's decision.

"This is the latest—and most strongly worded—decision to date holding that when credibility is at issue, cross-examination is essential to due process in a campus sexual misconduct proceeding," Harris told Reason.

Michigan's handling of Doe's dispute with "Jane Roe" shows precisely why the existing sexual misconduct adjudication procedures are often unfair to the accused. Doe, a junior, and Roe, a freshman, met during a party at Doe's fraternity, where they drank a lot of alcohol and then had sex. According to Roe, she told Doe she didn't want to have sex just before collapsing onto his bed. She was immobilized and unconscious while he initiated intercourse with her. Doe remembered the night differently: He said he asked her if she wanted to have sex, and she replied "Yeah." Two days later, she filed a Title IX complaint against him.

The university's Title IX investigator interviewed 23 "witnesses," though none were witnesses to the actual encounter. Male witnesses backed up Doe's account, insisting that Roe did not seem drunk to them, while female witnesses said the opposite. The investigator determined that the evidence in Roe's favor and the evidence in Doe's favor was equally compelling, and there was simply no way to break the tie. Thus the preponderance-of-the-evidence standard could not be met, and it was recommended that Doe be cleared.

Roe appealed this outcome, and the university reversed the decision "without considering new evidence or interviewing any students," according to Thapar. Since expulsion was a possible penalty, Doe decided to withdraw from the university, just 13.5 credits short of graduating.

Doe's lawsuit accused the university of violating his due process rights and discriminating against him on the basis of sex, a violation of Title IX. The due process claim concerns Michigan's refusal to grant him any sort of hearing where he could have challenged the accounts of Roe and her adverse witnesses. The discrimination claim stems from the fact that the university's appeals board held that the female witnesses' testimony outweighed the male witnesses' testimony.

On both counts, the lawsuit should proceed to trial, according to the court.

Thapar's decision holds that cross-examination is required when at least one party's credibility is at stake. "Without the back-and-forth of adversarial questioning, the accused cannot probe the witness's story to test her memory, intelligence, or potential ulterior motives," he wrote.

KC Johnson, a Brooklyn College professor who often writes about campus due process issues, noted on Twitter that it is "reasonable for universities not to want an accused student to personally cross-examine his accuser," and no court has mandated that direct cross-examination is necessary. Instead, Thapar's decision proposed a serviceable alternative: permitting a representative of the accused student to perform cross-examination.

"To the extent the court here is saying that cross-examination is essential, but personal cross-examination is troubling, this is the strongest language we've seen from a court to date in support of the right to some kind of representation, at least in certain proceedings," Harris told Reason.

Currently, very few universities allow a student's legal representative to take an active role in Title IX proceedings. According to Harris, it would be wise for the Education Department to "encourage, though probably not require, schools to allow the active participation of an advisor." (Harris also wrote about the decision here.) We will have to wait until the new guidance is formally unveiled to see what it says about representation and cross-examination.

Photo Credit: Andrew Horne / Wikimedia Commons

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  • SIV||

  • perlchpr||

    I mean, I guess blatant lying is OK for shitty fake journalism outlets?

  • Eddy||

    Next, Teen Vogue will have an all-Wittgenstein issue.

  • SIV||

    It's written by an anarchist. She'd probably get a beatdown from her comrades if she said otherwise. She does acknowledge individualist anarchism but with no mention of Spooner or Tucker. I'd never fucking heard of Voltairine de Cleyre (and I can see why). Her link to "Green Anarchism" does have one reference to John Zerzan but there's really nothing on anarcho-primitivism ( now that's reactionary!).

  • perlchpr||

    It's just stupid to speak of a political philosophy (or hell, a group of them) having an "inherent opposition" to an economic system.

    Anarchism doesn't oppose anything other than rulers. Presumably, if you're wandering around not telling people what to do, what flavor of economic system you use to do it with is fairly irrelevant.

  • Bill||

    Whereas socialism requires a government, doesn't it? Even if you call
    it something else. Having not read in depth on anarcho-socialism, is
    it just supposed to be that everyone will magically agree on certain
    things that the anarcho-socialists think are great (like one-payer
    health care)? And, isn't the point of individualism (including anarchism)
    that you allow people to not agree on everything?

  • perlchpr||

    To be fair, I have to admit that as an anarchist, I can't actually understand any of the arguments for anything other than individualist anarchism.

    I mean, if you're going to argue anarchy at all, that is.

  • Agammamon||

    Well, any article on anarchism that is headed by a picture of the black bandanna *socialist* brigades isn't one to be taken seriously anyway, no matter what publication it appears in.

    If the editors don't know the difference between the window-smashing 'anarchists' calling for 'the end of globalization' (implying they want *more* nationalism) in between breaking store windows whenever the G-7 or the GOP meet up and real anarchists then they're not going to know whether or not the article author knows what the hell she's talking about.

  • Sevo||

    "Well, any article on anarchism that is headed by a picture of the black bandanna *socialist* brigades isn't one to be taken seriously anyway, no matter what publication it appears in."

    Exactly.
    To claim a preference for "anarchy" enforced by a government is an admission of imbecility.
    Turd: 'Price fixing = freedom of the internet!'
    Tony: 'Demanding others pay for free shit = freedom!'
    Words do have meanings even if quite a few people do not understand that.

  • Bill||

    Define "that"

  • loveconstitution1789||

    While technically true that there can be different flavors of Anarchism, the main point is that anarchists despise the US Constitution and want it destroyed.

    Thats all I need to know to be sure they are enemies of Libertarianism.

  • perlchpr||

    Just keep yelling at the clouds, grampa.

  • Enemy of the State||

    Murray Rothbard was an enemy of Libertarianism? Really?

  • perlchpr||

    Waste of effort. LC doesn't actually know anything about anarchism. Is convinced that ancaps and minarchists are bigger enemies to libertarianism than socialists and communists, and refuses any input to the contrary.

    I mean, engage if you want, but, fair warning.

  • Kyfho Myoba||

    If it's not in the Constitution, it's EVIL! That includes your moms recipe for apple pie.

  • jjjjj||

    To be fair, most anarchists aren't againt rulers. They're just against the current rulers.

  • DiegoF||

    In legal proceedings there is, of course, one important circumstance in which the accused does have the right to examine his accuser--when he represents himself! Of course this is so strongly inadvisable as a rule that it is almost never attempted. Likewise, once a school allows an accused student's legal adviser to participate in school proceedings, a ban on the actual accused personally examining his accuser is going to be completely superfluous. No one but a fool is going to want to do that.

  • Fist of Etiquette||

    ...a judge with a reputation for defending due process norms...

    Seems like they should all have this.

  • Diane Reynolds (Paul.)||

    These days nodding to due process is a bit like joining ISIS.

  • Fist of Etiquette||

    Male witnesses backed up Doe's account, insisting that Roe did not seem drunk to them, while female witnesses said the opposite.

    Does this mean that Mars has a higher or lower tolerance for alcohol than Venus?

  • Earth Skeptic||

    Might be a strategic threshold for "drunk".

    Female friends: anything less than fully aware and in control.

    Male friends: not actually barfing.

  • MatthewSlyfield||

    More like:

    Female friends: Anything less than stone cold sober.

    Male friends: Able to stand without assistance and speaking at least somewhat coherently.

  • DiegoF||

    I just realized, kids out there should probably rule a girl out for the night if she ever says, "I'm so drunk!" Even if she said it while holding her first drink of the night in her hand, is touching your chest as she says it, and says it after saying something "embarrassingly" suggestive to you. And even if it's three hours--and zero drinks--later when you two finally leave the place. Because someone heard her say it. Hail a cab for her and get her number before closing the door behind her. It ain't worth it.

  • Petie Cue||

    Excellent advice.

  • Bill||

    According to my wife, after two drinks I am drunk.

    But only if I say something she doesn't like.

  • Eddy||

    The Daily Beast has an article on The Plot to Bring Down Pope Francis. In the course of its "conservatives pounce" narrative, the article makes some embarrassing concessions:

    "McCarrick is the perfect target in a campaign to score against the pope. Although too old to vote himself, he was one of the cardinals who lobbied for the election of Francis, according to several conclave historians' accounts. At one point, he even took credit for getting the Argentine elected. "How sweet for conservatives that he would be the one to bring him down," an American bishop who does not wish to be quoted by name told The Daily Beast. "It's like twisting the knife."

    "Though Francis' strategy of silence may have been meant to avoid dignifying Viganò's claims with a response, it has mostly backfired because it was not a flat-out denial of the content of the letter. Conservatives have been able to sow seeds of uncertainty about Francis...

    "...even those who are trying to defend Francis have been forced to admit that everyone lied about how (the meeting with Kim Davis) transpired, despite the official statements from the Vatican at the time. Those close to Viganò say there is plenty more to come....

  • Eddy||

    "As for Wuerl, whose resignation would be welcomed by victims of clerical sex abuse and increasingly by supporters of Francis who believe the cardinal is quickly becoming an albatross around his neck, Pope Francis has actually had the cardinal's resignation letter in front of him since November 2015 when Wuerl turned 75, the age all archbishops are required to offer to resign their posts. The ball is squarely in Francis's court on Wuerl, and, in fact, on the entire scandal that is now ripping the church apart at its seams."

  • DiegoF||

    Aha! Bannon! I knew it! Although of course we know who is really pulling the strings.

  • DiegoF||

    I think it was Just Say'n--in fact, of course, it would have to be--who pointed out that we should not expect Viganò to come out of this looking anything but self-serving either. That he's basically a Mark Felt character, certainly not a hero or anything. Points out that these types of informants are unlikely to be particularly good people, since really good people do not typically go into politics in the first place.

  • Eddy||

    I know *I* used the Felt analogy.

  • DiegoF||

    Oh it was you. I never remember. There are only two other people here that ever give a shit about Vatican politics; this place ain't exactly Whispers in the Loggia.

  • Agammamon||

    "conservatives pounce" narrative

    I like that - those nasty conservatives, opposed to the Pope's righteous plan to soak 'the rich' and save the planet and having no *legitimate* counter to the immediate implementation of world socialism, instead try and make out like the Pope's long-standing ignorance of, and current protection for, pedophiles is an important moral failing or something.

    #sad

  • Mark22||

    I miss the good old days when people inside the Vatican would just get rid of each other by poisoning or literal back stabbing.

  • jjjjj||

    It doesn't matter if what Vigano stated was factual. And it doesn't matter that just about every piece of evidence that has come out supports Vigano's story.

  • Eddy||

    Now the TV is giving Ruth Bader Ginsburg the kind of tongue-bath we last saw at the McCain funeral. And she's not even dead that I know of.

  • DiegoF||

    Eddie you asshole. You could've put that second sentence first, instead of fucking with us like that.

  • Agammamon||

    Also, why come Reason no cover Burt Reynolds? Not even an obituary?

  • DiegoF||

    It did!

    Incidentally it had had its McCain video obit up on YouTube for months, if you knew where to look for it. I thought about posting a link, but kept putting it off until he actually died.

  • DiegoF||

    What is should've done is devote more attention to Aretha's funeral. That shit had it all.

  • SIV||

    Anti-Southern bias.

  • sparkstable||

    In order for any of these kangaroo court proceedings to make sense, we must assume that a non-judiciary entity of the state is capable to carry out a due process proceeding. Does anyone know where there is any mention of authority granted to anyone outside the judiciary to carry out a trial of guilt or innocence on a criminal act? I know there are other processes of "due process" (at least according to the courts like voting is considered a form of due process when determining if a newly passed law is applicable to those who do not favor it) but for guilt of a crime I would think only the courts can do that.

    If not, then when these schools rule against the accused they are denying him his rights without due process no matter the structure or procedure. If the victim is a victim of a crime, take it to the courts or (and I'm going to throw up a bit in my mouth but this is how it is) to the cops. By virtue of not taking it seriously, I have good reason to doubt the sincerity of the victims claims.

  • Incredulous||

    Yes, a school proceeding on an alleged criminal act is inherently inappropriate - until the courts have made a determination.

  • Eddy||

    What did the poor kangaroos do to have these campus tribunals compared to them?

  • DiegoF||

    Well since Mr. Green Jeans was hanged for attempted mutiny on virtually no evidence, I'd say the comparison is richly deserved.

  • Anomalous||

    Was it a formal court martial or a captain's mast?

  • FlameCCT||

    They hop up and down while kicking at people?

  • Flinch||

    Well, well. Habeas Corpuscle alive and well? There may be hope to save universities after all, but won't be forthcoming from administrators.

  • IceTrey||

    What would be wise is to let the cops and courts handle sexual assault charges. If there is an arrest the student is suspended. If there is a felony conviction the student is expelled.

  • Sevo||

    "If there is an arrest the student is suspended."

    Not going for this:
    "49ers linebacker Reuben Foster charged with felony domestic violence"
    https://www.nbcsports.com/bayarea/
    49ers/49ers-linebacker-reuben-
    foster-charged-felony-domestic-violence

    The SJW 'sports-writer' hired by the lefty rag SF Chron was on this in a NY minute, screaming (in print) that the 'new 9er's management was no better than the last since they didn't fire the guy the minute he was charged!!!!!!!!!!!!' (that would be the asshole Ann Killion).
    The 9ers management did not respond to her tirade, stating they were awaiting information.
    Turns out she (the one charging violence) recanted the claim; she was losing a meal ticket, and since there was no evidence the charges were dropped. That scumbag Killion, after claiming the guy was 'a father raper and mother killer', never got around to apologizing in print.
    I hope the guy throws some soap under her when she's in the locker room and doesn't help her up when she lands on her ass.

  • Old Mexican - Mostly Harmless||

    Moral of the story: don't have sex with drunken whores.

  • Sevo||

    "The Foundation for Individual Rights in Education's Samantha Harris praised the Sixth Circuit's decision."

    AWright!
    These folks are climbing up in my end-of-the-year check-writing event.

  • Alsø alsø wik||

    "...Title IX, the federal statute that sets rules for campus sexual misconduct cases". It does nothing of the sort. In its entirety:

    No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

  • Michael Ejercito||

    It is as if people pretend that the law is something other than what it reads.

  • Incredulous||

    How can anybody with basic decency defend these kangaroo courts?

    How this case was handled is &^*� up beyond recognition. It was clearly a "he said, she said" without any compelling evidence to favor one side. The lack of due process is only one serious problem here. Even if there was "preponderance of the evidence," this standard of guilt is wholly inappropriate for such a serious charge. It really needs to be "beyond a reasonable doubt." It appears that the student didn't file a criminal complaint for an alleged criminal sexual assault. Or it was dismissed for lack of evidence. If there is inadequate evidence for such a complaint, what gives the university cause to determine guilt? Then there's the inexplicable reversal of the original decision.

    In addition, the way the accused was mistreated is itself the most egregious violation of Title IX!

    Not only is the student's case not dismissable, it should be an easy win in a fair court proceeding. He faced a kangaroo court for an alleged criminal act without any criminal charge and won. Then, the decision was arbitrarily reversed. His reputation and entire career has been seriously damaged. He deserves millions in damages, an admission of error by the university, an apology and reinstatement. Others responsible for this travesty should be fired and barred from higher education due to a violation of Title IX and basic decency.

  • Marshal||

    Even if there was "preponderance of the evidence," this standard of guilt is wholly inappropriate for such a serious charge.

    It's a mistake to focus on the standard as the problem - perhaps my only criticism of KC Johnson. Returning to a higher standard of evidence - say clear and convincing - would make little to no difference. The problem is the agenda driven bias of the system particularly in staffing and training. The Title IX organization empowers only those committed to their cause. Then the training is even more extreme such that not following the extreme bias becomes a justification for removal since reasonable judgement would violate the training program. The biggest impact comes in selecting investigators.

    Title IX investigators have almost unlimited power to control the outcome by (for example) ignoring exculpatory evidence or rendering judgement on credibility. Since no defense advocate is allowed and questions by the defendant can be and often are ignored the puppet judges (who are themselves both selected for and trained into extremism) are almost wholly dependent on the information presented by the investigator. If the standard were to change the investigators would alter their summation to meet the new standard.

    Continued.

  • Marshal||

    Continued.

    Numerous times investigators have controlled the outcome often by refusing to present exculpatory evidence (when challenged later they implausibly claim it isn't relevant). In the Drew Sterrett case investigator Heather Cowan invented statements by the accuser to justify her conclusion. Her falsifying evidence became public due to a lawsuit but rather than end her career she was hired as a full Title IX coordinator (a promotion although at a different university, UNM) and later returned to UM as an assistant coordinator in line for promotion when the Coordinator position opens. The system promotes and rewards those willing to do anything to achieve the far left's preferred outcomes. Changing the standard will change the presentations, not the results.

  • Rob Misek||

    A #MEETOO moment for men who simply want due process.

  • Mark22||

    Thapar's strong defense of the right of the accused to cross-examine the accuser is a timely development

    And what does that accomplish? The same misandrist feminists who denied him the right to face his accuser are going to sit in judgment of him; if he questions the woman, it will only make them even more angry.

  • vek||

    All that I know is that of the several cases of theoretical drunk rapey stuff I know of from my own life, I know for a fact the women were lying about 3/4 of the time. Different reasons during the different times, but I was there at a few of the events, and had friends I trust at others.

    I don't know WTF is wrong with women where they do this shit, but they do. They think it's better to just lie and call a guy a rapist, WHICH IS A SERIOUS ACCUSATION, versus accept the fact that they dropped their panties, and then regretted it for whatever reasons. It's bullshit. If you weren't blackout drunk, or hell probably even if you were, just take the walk of shame and move on. I was technically raped by modern definitions before, and I didn't bitch and moan about it.

  • perlchpr||

    I just think it's complete bullshit that the standard is "If she had been drinking, she can't give consent", but somehow that doesn't apply in the other direction to the drunk guy that she had sex with.

    Because the only way that works is if either women have no agency, or possibly that men have no agency, or if, in some way, men and women are not equal. And if we're going to legally define men and women as "not equal", then there's a whole lot of reality we need to catch up with.

  • vek||

    Yup. Basically women have a default ability to cry rape after the fact if they regret it for whatever reason. In theory I could have had a LOT of rape accusations against me if women had been vindictive in my past... Despite having never actually raped anybody.

    YET if I had gone down to the police station and reported that I had been almost blackout drunk, and had a girl have sex with me that I didn't really want to have sex with, they would have laughed me out of the place. But by modern definitions I WAS RAPED. I didn't whine about a poor life choice, because really it didn't matter much.

    Double standards are bullshit, but pretty much the entire left wing is based on double standards nowadays.

  • Michael Ejercito||

    I would not be surprised if these double standards incited men to join ISIS.

    does not injustice breed terrorism?

  • Kyfho Myoba||

    You clearly do not understand the nature of women. Their sexual strategy is very different than that of men. For one thing, it's bifurcated - there are two different benefits that they pursue, and their confusing antics are made clear when one understands what those are and how they affect the woman pursuing them. Hint: balancing the two goals requires deception in many cases - there's a good reason that the ancients credited a mans testimony as worth twice that of a woman's. Side note: women are over 4 times more in-group than men are, although women have better interhemispheric connectivity (4x), males have between 8 - 12 times better connectivity between the neocortex and the limbic system/amygdala.

    therationalmale.com start at the very beginning and proceed from there. If you are new to evolutionary psychology, you will benefit from every post and every comment. If you do happen to make it through a few dozen articles, you will have answered all of your (implied) questions in your comment.

  • TxJack 112||

    Finally, there is some degree of sanity starting to return to universities at least in regard to this issue. As the parent of a son who is a couple of years from entering college, this is a concern. A lot of young men's lives have been destroyed by false allegation without giving them the chance to mount any type of defense. The only requirement has been for a young woman to make the charge, the guy is found guilty and his life destroyed. This event was a clear case of guilty until proven innocent which is contrary to every American principle related to justice.

  • vek||

    I'm so glad I don't have kids yet... I'm hoping society has become a lot more sane before I have to worry about sending my kids off to school, let alone uni. If I were you I would look very hard at what school I send them to. Unless they're very solidly grounded politically, and won't fall for the leftist brainwashing, and be very careful about stuff like this, I would consider looking into some of the conservative or even religious universities out there. I'm not even religious, but when pondering what type of school I'd send my kids to in a perfect world, a Christian school sounds preferable to a public one.

  • Uncle Jay||

    "If credibility is at stake, "the university must give the accused student or his agent an opportunity to cross-examine the accuser."

    Blasphemy at its apex!
    Since when do the little people, especially a male on one of our higher re-education camps, have due process?
    Where does this miscreant think he lives, in a free country?

  • Enemy of the State||

    Why the hell is the justice system not in charge of these investigations to begin with? If found guilty, then the university can take whatever actions it deems appropriate.

    But let the LEGAL system determine guilt or innocence, not an educational institution...

  • vek||

    Yeah, it's a weird out growth of the idea that schools can punish kids for bad behavior. They can suspend your kid for starting a fight in 6th grade without calling the cops on them... So why can't they expel them for a supposed rape when he's 21 and $100K in debt at university?

    It seems reasonable in 6th grade for a minor infraction, but not so much at uni for a serious one.

  • sgreffenius||

    Even if judges find in favor of due process on campus, courts do not control federal funds to schools. Schools continue their craven submission to Obama's Title IX standards because they do not want to forfeit the money they receive from all the federal agencies that fund academic research, scholarship programs, student loans and other financial aid, as well as funds they receive from the Department of Defense, National Science Foundation, National Institutes of health, Defense Advanced Research Projects Agency, CIA, NSA, Department of Transportation, Departments of State, Commerce, Health and Human Services, Housing and Urban Development, and Department of Education.

    The letter from Obama's civil rights people contained a do-it-or-die threat: comply with these rules and procedures, or we will try to shut you down. School administrators are highly aware of what proportion of their revenue comes, directly or indirectly, through the federal treasury. Before Title IX, government used positive inducements to get universities to behave in certain ways - ways favorable to government interests. The inducements became institutionalized over the years. Title IX was the first time government threatened to withdraw _all_ of it, for lack of compliance. It may not have been a realistic threat, it may even have been an empty threat, but craven educational administrators do not want to test that proposition.

    Continued:

    http://www.twitlonger.com/show....._post=true

  • dpbisme||

    Wait?

    I think that if he had sex with her while she was passed out that is RAPE and from my understanding of the way things work a BIG DEAL.

    Seems this should have been handled by REAL Law Enforcement.

    DPB

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