Doe v. University of Michigan, University of Michigan Board of Regents, et al., No. 17-2213 (6th Cir.) September 7, 2018.

How the Case Came to Federal Court.  John Doe and Jane Roe, both undergraduates at the University of Michigan, met at a party, had drinks, and had some sort of sexual encounter, subsequent to which Roe complained to the university.  The university conducted a multi-witness investigation which yielded conflicting accounts of the Doe and Roe encounter. The investigator recommended no action. On appeal, the University Appeals Board set the recommendation aside and proceeded to the sanction phase of proceedings.  

Doe withdrew rather than face expulsion, then initiated suit in federal district court alleging denial of due process because he was not permitted a hearing with an opportunity to cross-examine Roe and other witnesses, and alleging discrimination against him on the basis of gender in violation of Title IX.

On Appeal, Doe Succeeds in Obtaining Reversal of Trial Court’s Dismissal.

The Sixth Circuit reversed the federal court’s dismissal of Doe’s complaint.  The panel stressed that due process requires the opportunity for cross examination in student misconduct matters. A credibility determination made on the basis of a paper record containing conflicting narratives falls short of constitutionally required minimums.  

Doe’s Consequences Severe While University’s Costs Minimal. The grave and life altering consequences of being labelled a sex offender serve only to underscore the need to afford an accused an opportunity to confront witnesses.  The cost of offering such an opportunity is negligible to the university but its absence may be devastating to the student under review. The university’s position that an opportunity to refute a paper record is a fair substitute for live cross examination defies circuit precedent establishing that cross-examination is without parallel in unearthing inconsistencies and in exploring credibility and demeanor.

There is Nothing Like the Real Thing. Witness statements cannot be substituted for live cross examination before the fact finder.  The panel noted, however, that if needed, the university may modify processes so as to minimize trauma to the complaining witness.  

It is not necessary, the panel observed, that only the accusing witness’s statement be in issue for the opportunity to cross examine be offered.

Doe’s equivocation in his police statement is not of such force as to conclude that he admitted wrongdoing which would preclude the need for cross examination.  Nor is it availing that cross examination occurred in a civil deposition conducted after the university had reached a conclusion adverse to Doe.

Money, Money, Money, Money. A university violates Title IX when it errs against a student based on sex.  In Doe’s case, the Sixth Circuit has announced that financial pressure on a university to conform to Title IX or risk forfeiture of millions of dollars in aid may be a factor in determining whether a decision was affected by bias.  As the record suggests that that the university credited female witnesses’ testimonies even where initial interviews favored Doe, when combined with financial pressures on the university arising from Title IX, Doe’s claim is sufficient to survive dismissal.  Even if other explanations might exist, as the court’s dissenting justice suggests, dismissal is not warranted.

While the court recognized the financial pressures as a component of bias, it has declined to expand the “archaic notions” theory of bias beyond the athletic realm and similarly has declined to extend a “deliberate indifference” theory behind sexual harassment claims.

Doe v. University of Michigan 6th Cir. September 7 2018

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