In its desire to be a mecca of political correctness, the University of Michigan continues to prioritize the rights of some students over others.
And that does not fly in the courts, thanks to the U.S. Constitution, which demands free expression and due process for everyone.
UM’s resistance to ensuring its codes of conduct abide by that framework keep landing the university in court.
It got slapped once again by a federal judge this week.
U.S. District Judge Arthur Tarnow found UM’s sexual misconduct policy to be unconstitutional, following a 2018 lawsuit by a student who claimed he’d been unfairly treated by the university and denied basic due process.
The judge ruled that an accused student must be allowed to cross-examine witnesses, even his accuser.
If this sounds familiar, that’s because there was a very similar case that emanated out of UM and landed before the U.S. 6th Circuit Court of Appeals in 2018. That case, Doe v. Baum, also determined that universities must allow some form of cross-examination in sexual misconduct investigations. In both these lawsuits, the accused student claims the sexual encounter was consensual, while the accuser thought otherwise. There weren’t witnesses in either case.
Title IX, the law that bans sex discrimination at schools receiving federal money, has forced higher education institutions to form tribunals that investigate sexual assault accusations. This created a framework that for too long has stripped due process from accused students in an effort to protect accusers. Too many young men have been kicked off campus without a chance to defend themselves.
But that’s starting to change. As courts are demanding due process, U.S. Education Secretary Betsy DeVos is also revising the Title IX rule governing these investigations to ensure that both the accused and accuser are treated fairly in campus proceedings. She is expected to release the final guidelines in the coming weeks, following a robust public comment and response period.
Although UM adjusted its sexual misconduct policy following the Baum decision, it didn’t do so in a way that has appeased the courts. The interim policy still allowed a student to be suspended prior to a hearing, which the judge said was “unconstitutional.”
“An accused student’s rights must be guaranteed — not left open for interpretation,” Tarnow wrote.
The judge says ignoring court rulings is a pattern with UM. He cited a 2018 free speech case brought against the university by Speech First. That lawsuit targeted UM’s bias response team, which encouraged students to spy on each and report behavior that made them feel uncomfortable. The 6th Circuit Court determined that even though the university amended its policy following the suit it had done so in a “disingenuous” manner.
Tarnow also chided UM President Mark Schlissel for publicly saying the “6th Circuit got it wrong” in the Baum decision and defending the university’s former method of adjudicating these complaints.
“Under the second factor, like in Speech First, Inc., the University has ‘continue[d] to defend its use of the challenged’ policy,” Tarnow wrote.
Former U.S. District Judge Avern Cohn, who retired last year, was the trial judge in a case that found UM’s 1988 speech code unconstitutional.
In an email, he said this latest case “shows that the university continues to demonstrate a lack of sensitivity as to what the Constitution requires.”
“The university’s policy, much like the speech code years ago, is result oriented and elevates technicalities over what the Constitution requires,” Cohn observes. “The university would do well to heed the dictates in Judge Tarnow’s decision.”
We’ll see if it does this time.
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