SIXTH CIRCUIT: Can the University of Michigan “Set Up a Kangaroo Court”?
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
