The Sixth Circuit appears poised to rule again for an accused student in a lawsuit from the University of Michigan. Despite the court’s ruling about the importance of cross-examination in Cincinnati, the University of Michigan elected to maintain its Title IX procedures, which deny to the accused student any form of cross-examination. University of Michigan set up procedures in which neither the accused student nor the ultimate university decisionmaker benefited from cross-examination. And cross-examination would have mattered in this case, because the accuser’s medical records contradicted her claim to have been incapacitated. At least two judges on the panel- Amul Thapar and Julia Gibbons- seemed deeply troubled by this approach.  Indeed, Thapar summarized the university’s argument as requesting authority to “set up a kangaroo court.”

This case is an unusually rich one factually. UM uses a single-investigator model, in which one person interviews the parties and other witnesses, and then writes a report. In this instance, the investigator found the accused male student not guilty. But, exercising her rights established under the Obama-era 2011 Dear Colleague letter, the accuser appealed the finding. Using the same evidence as what was before the investigator, but without hearing from any of the parties, the appeals board found the accused student guilty, alleging that the accuser was incapacitated, and expelled him.

In the sixth circuit court, Deborah Gordon argued for the accused student; the University of Michigan’s lawyer was David DeBruin. DeBruin faced repeated, skeptical questions from both Judge Thapar and Judge Gibbons.  Thapar accused DeBruin’s  position of disregarding “everything courts have ever said, including the United States Supreme Court, about cross-examination.”  Gibbons noted that, given the facts of the case, it was absurd to suggest that the accused student’s rights were protected in the appeals process. After UM’s lawyer DeBruin accused the judges of second-guessing the appeals board’s factual findings, Thapar replied: “We’re not second-guessing the evaluation; we’re second-guessing the procedures provided to the Plaintiff before you deprive him of his rights. And what our problem is: is we view the due process clause, and what happens all the time—and we talked about it in Cincinnati, in Doe v. Cincinnati, where we said how fundamental cross-examination is when credibility is at issue. And what you’re saying is, “’Trust us, not the Constitution, and let the university tell you what’s sufficient.’”

Audio of Sixth Circuit Oral Arguments  By KC Johnson

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James Doe claims he was unfairly expelled from Virginia Polytechnic Institute for consensual sex. Now he is is suing VA Tech and five employees for gender-based discrimination in violation of TitleIX, and violations of his rights under the due process and equal protection. Before heading to court,  James Doe appealed VA Tech’s finding of responsibility and sanctions against him.  In his appeal, Doe ’emphasized the numerous due process violations that occurred during the investigation and at the hearing, and provided new evidence to further clear his name. He argued that the sanction was unduly harsh in comparison to similar complaints heard by the Student Conduct Council.’  But when Doe was informed in July 2016, that ‘there was insufficient cause to reverse the decision made by the hearing officers’ Doe took action. He hired lawyers and is now suing VA Tech.

Per Doe’s July 2018 court filing: “Virginia Tech treats male students accused of sexual misconduct by female students more aggressively than it otherwise would…Virginia Tech has engaged in a pattern of unfair investigations and adjudications resulting in serious sanctions being imposed on male students, while not making comparable efforts with respect to allegation of sexual violence and abusive conduct made against female students. The decision erroneously finding Mr. Doe responsible for the alleged sexual misconduct, was motivated by gender bias against accused male students.”

James Doe v. VA Tech 

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